A Research On The Judicial Review Of The Administrative Discretionary Standards

The administrative discretionary standard system is the need of reality. Its system function is to limit the unbridled exercise of administrative discretion and maintain the consistency of law enforcements. Administrative discretionary standards can be divided into the technical standard and the policy standard in China, the administrative agency’s attitude for the discretionary standard is significantly different. The rise of the administrative discretionary standard system in China is spontaneous and a bottom-up, therefore there will be a lack of regulation at the legislative level and risks in enforcement. In addition to relying on internal self-supervision of administrative agencies and the supervision of the public, the judicial power is also important. The basic reason of this distinction lies in the amount of discretion in discretionary standards. The judicial review just exists in theory and be reflected from judicial documents, since the characteristics of the discretionary standard and the administrative litigation system in China. After reviewing the judicial documents, the article finds that, the court in general has more room for review of technical discretionary standards and prefers to give respect for policy discretionary standards.In this paper, the first chapter analyzes the significances and raises three essential characteristics of the discretion standard system.The second chapter discusses the process of the rise of discretion standard system in China and tries to distinguish the type of discretion standards in practice. This chapter points out the factors to distinguish the discretion standards. The factors are the clue of the whole article.The third chapter discusses the external requirements of discretion standard’s rulemaking. The requirements of discretion standard’s rule-making are low, cannot meet the requirements of law’s rule-making.Before examining practices on the judicial review of discretion standards in China, the fourth chapter orders the theories of the judicial review and tries to search the system space under the administrative litigation system in China.The fifth chapter discusses the cases, and summarizes the court’s judicial review method on the discretionary standard.