The Research on Administrative Discretion Standard
|School||Changchun University of Science and Technology|
|Course||Constitutional and Administrative Law|
|Keywords||administrative discretion discretion standard control technology effect|
In modern siciety, with the powers of the executive management continue to expand, there is a wide range of administrative discretion in administrative activities.Administrative discretion is double-edged sword, our task is not to be denied his or rejected, but should recognize its legitimacy at the same time, through a variety of ways to limit it to run on the track of the rule of law. Which the executive’s own benchmark through the development of administrative discretion, administrative discretion is restricted an important way. Discretionary benchmark in China has its inevitability and necessity. Because many of the administrative staff of China’s current quality of law enforcement and law enforcement standards that is not high, need to be positive guidance, and refined through the interpretation of laws, rules and regulations to achieve that purpose; executive relative to need to get justice, and discretionary basis at least form to protect the results of co-contracting with, but also the executive relative to the expected results has become more clear; In addition, for the judiciary, in the case of judicial review can be the judge discretion to determine the benchmark for the standard executive authorities abuse of power, and decided the legality of specific administrative act or not.Benchmark is the administrative discretion, the executive authority of the legal framework, following the original intent of the legislators and in accordance with the principle of equality, the principle of proportionality, etc., by their own law enforcement experience, but to the elements-the effect provided in the form of set criteria. Not in the nature of its laws, regulations and other normative documents, but are China’s "other normative documents" area, is the executive authority of an abstract administrative acts. Concrete can be defined as the executive summary of enforcement experience under their own internal administrative rules enacted, from the perspective of soft law to make up the laws, in the administrative proceedings as evidence rather than trial basis. This would resolve the administrative discretion of qualitative benchmarks in our issue of the constitutionality and legitimacy. Most of China’s administrative discretion benchmark interpretative administrative rules, its just trying to the meaning of specific legal norms, but not directly to the establishment of the executive relative rights and obligations. It focuses on an executive body and its staff consistent interpretation of legal norms, to avoid the abuse of discretion, in order to achieve co-contracting with the results. It has a strong internal validity, but should acknowledge the administrative organs and their staff may, in exceptional circumstances or change of circumstances, and after a certain degree of discretionary referrals to the approval process fails to comply with the benchmark, which helps to achieve better case justice. The behavior of law enforcement by administrative authorities of the executive relative to the external effect of an indirect, according to:follow the judge has discretion to base the effectiveness of administrative practices, and also requested the co-equal with the principles of sentence.Discretionary basis in the building level, the setting should follow the rule of law, administrative principle of proportionality, the principle of administrative trust; regulate the development of the main discretionary basis, in the discretion of the appropriate benchmark should be implemented after the enactment of the approval or filing system that, according to executive level different to the superior administrative authority for approval or filing in order to prevent internal conflict; must pay attention to the fact that the content of cell sub-plot and the discretion of the division problem, the magnitude of the statutory discretion to partition, format it into a number of discretionary time, and discretion of each grid times preset standard is the core means, the legal effect of the plot and quantitative method applicable to the same, which also determines the benchmark want to regulate the content of administrative discretion, and discretion must pay attention to the fact that the plot grid sub-division problems; in the development of mechanisms of public participation procedures and public announcement system, is the so-called "sunshine is the best preservative," discretionary benchmark open, conducive to the public of its supervision and control, reduced discretionary subject benchmarking rent-seeking space, to prevent the abuse of discretion basis; final adoption of legislative oversight, judicial oversight of administrative supervision and work together, making the operation more standardized discretionary basis and rationalization. Legislative oversight can be strengthened and improved the system of discretionary authority of the benchmark monitoring mechanism to ensure the continuity of its supervisory and professional; administrative supervision of the advantage of the higher administrative authorities were also engaged in similar work of the department, therefore, not a lack of professionalism specialized knowledge and experience, its oversight will be more realistic. Judicial supervision on the one hand to protect the continuity of its oversight and supervision is easier to achieve individual; the other hand, due to administrative court judges engaged in the administration of justice, with the appropriate expertise, the Authority is not the lack of professionalism in the law even surpassed the application of internal executive oversight of a chip.In our country, the administrative legislation discretion standard level in uneven, content also differ in thousands of ways, affects the authority and unity. In this paper, the concept of administrative discretion, scope and effectiveness are analyzed, thus the administrative discretion in making main body, develop procedures, the specific content and other aspects put forward the proposal of standardization, in order to maximize the function of. Administrative discretion is determined by the nature of its is not unconstitutional, thus laid its legitimacy of administrative discretion standard, but in essence belongs to administrative organs to develop self-discipline rules, desire to limit the discretion of administrative departments. While the mechanism of supervision and restriction is indispensable, in order to prevent the discretion standard as another form of arbitrary power and abuse of power. This paper wants to unify the discretion standard practice in our country, comprehensive exposition of discretion standard concept, nature, function, effect and the specific system, in hopes of discretion standard in our country to better play its role to benefit somewhat.