| A case study based on the Gazette of the Supreme People's Court shows that there are two distinct logical means of identifying the abuse of authority by administrative organs in China, that is, the separate identification and conjunctive identification, each with its own application range, identification conditions and value orientation. According to the former, which is based on formal illegality review, any illegal duty behavior may be seen as abuse of authority, as long as one of the two elements (“authority” or “abuse”) can be proved, whereas according to the latter, which is based on substantive illegality review, in order for an act to constitute abuse of authority, both the “authority” element and the “abuse” element have to be proved, and the abuse of authority is actually an abuse of discretion. The separative identification is closer to ordinary life, while the conjunctive identification is more compatible with the spirit of the Administrative Litigation Law in China. The difficulty in identifying the subjective fault may affect the judicial application of the criterion on the abuse of authority. China should adopt the functionalist position instead of legislation-centered doctrine, and apply a balanced legal principle and functional self-regulate technique to reduce the difficulty of identification of subjective motivation of “abuse”. |
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