The Research To The Issue Of Administration Discretion At The Stage Of Society Transforming In Modern China

Administrative discretion takes an important role in the modern governing management, it has been widely existed in each different areas, and plays the role in the whole procedure of administration managing, administrative discretion is also a disputed issue for a long time. In western countries, the research of administrative discretion issue has long history, and also has been investigated much deeper, the research result is relatively richer. The administrative discretion can be divided into two kinds according to the attitudes that the'learners'hold. People who believe regulations basically hold a negative attitude to administrative discretion; they think administrative discretion can be stands by legal. With the development of the society, governing and welfare country has followed up, the wide exist of administrative discretion has become a fact, some learners who hold the regulation attitude has drop the strict rule that"without legal honored rights, without governing", they particularly estimated that the Court has the final rights of decision whether administrative discretion is legal or reasonable, which means the core of the regulations for the governing behaviors has been changed from law-making to law-managing. But functionalists regard that administrative discretion is a necessity to realize the society fair, welfare country, the improvement of the governing efficiency. Therefore, Court can not practice the whole control of administrative discretion in a strict meaning. Functionalists think that administrative discretion can not be done without any bind, but it also seems unsuitable and not up-to–date if banded by law-making and law-governing completely."Career's honor"and"Public monitor"is much better than checking and monitoring by law. From the functionalists'point of view, the rights of administrative discretion should belong to government, therefore, the government should be given the freedom to research and find their law. Western learners'point of view and the research method of administrative discretion is worth our learning.As to the administrative discretion exist in China, the basic points of this essay is as below: after the Third Session of the Eleventh Central Committee of the Party, our country has entered a new historical transforming period. There are two obvious changes in the administration managing aspect: one of them, managing mode has changed from previously plan governing, order governing. Secondly, the range, content, and function of the administration managing have dramatically changed. The function of public management and service have been strengthened. During the society transforming period, on the one hand, the legal system is still not complete. It is impossible that the existing governing law and regulations can give detailed way for all the concrete issues that may happen during the administration managing. At the same time, during the transforming period, there are many cases that reform goes first, law-checking followed up. One the other hand, the society is changing without stopping. New situations, new questions, new things come out, the society construction has changed hugely. The benefits of people, who comes from different classes, careers, areas varied characteristically and multiple. People's worth attitude and worth standard need multiple. The public managing and social service of administration managing have been strengthened, the range of administration managing have been enlarged. Administration managing issue is more complicated, too. All the above have determined that it is impossible to request the government to practice"governing according to law"machenically. If our government to deal with different kinds of concrete governing issues that may happen in an active, reasonable way, and improve the governing efficiency, protect the public benefits to realize the private case fair. Therefore, to honor the government administrative discretional power is the necessary choice. What is more, when researching from the governing activities procedure of society transforming, we can find the strictly"banded"behavior is really seldom, most cases are administration discretional behaviors.In the period of our society transforming, the active meaning of administrative discretion in this essay are mainly shown as: Firstly, improve governing efficiency to realize the society fair. The government must behave actively on the society public issues, even which are not determined or not stated in law or regulations, or for some urgent things happened. The government can not ignore their responsibilities by finding excuses of that there is no such requirements specified in law and regulations. The general fair that the law pursue and the single case fair that happened in concrete issue is not always that match, this is the core worth of administrative discretion behavior. Secondly, administrative discretion has the function of balance. To realize the balance of responsibility and regality, that is under the legal, the governing main body make the real, fact, fit choice. To get the balance between the public benefits and the relative person's benefits, that is in administration managing, when the governing main bodies meet the conflicts between public benefits and private benefits, he should first make the court of the worth, get the comments for benefits, to confirm their relatively importance and preference position. Then deal with on the principle of different orders, care for two parties. The balance of efficiency and fair, that is administrative discretion is aimed at society fair, the useful governing is the basic guarantee. To get a balance on this two aspects for concrete issues.On the base of the above theory research for the administrative discretion in society transforming period and confirm its active meaning. This essay has analysis the administration managing procedure with real proof. To explain exists with the character of wide and certain, to tell the dangerous is administrative discretion is abused, to tell the reasons and show form if be abused use. The practice of administrative discretion has two basic ways, that is procedure discretion and attending parties discretion. Because most of our governing law and regulations are law-making in frame, and give the governing level, the governing main bodies are left with some space in the aspect of procedure and pre-comments , the administrative discretion is certainly widely existed. All the powers have the possibilities to be abused, the administrative discretion is not the exception, either. Just as H. Weid, a well-known administration managing learner noted out:"All the administrative discretion has the possibility to be abused, this is still a truth."During our society transforming period, the abuse of the a administrative discretion is mainly shown as: position power abuse, do not do or delay to do their legally described duties; the governing punishment is not fair, the counter-party's attitude is the main base to give a lighter or heavier punishment, etc. The main reason that abuse the administrative discretion are : the government or the governing staff thinking about their own benefits; the social influence of the people under managing and managing; the interruption of other organizations and private persons. In order to guarantee the administrative discretion can be practice legally and reasonably, below questions need our attention to solve: to improve the legal-practice legal abilities, to understand well and correctly the relationship between reasonability and legality ,to emphasize the responsibility under legal. To deeply understand the relative law and regulations, the big and hard to conclude cases should be researched and decided by group, obey procedure regulations, to choose a proper solving way, pay more attention to the fair and efficiency on the law practice.According to the above discussions, in order to prevent the abuse of the administrative discretion, it is quite necessary to make sure rules for administrative discretion. This essay regards: during our society transforming period, it is impossible to make the detailed practice regulation for administrative discretion, because of the complication, multiple and easy-changing characters of the governing issues. But it is practical that we make some general, practical rules for administrative discretion. According to the characteristics and the real practicing situation of administration managing in the social transforming period, the administrative discretion basic rule we should obey are: Firstly, legal to practical rules, administrative discretion must be practiced within the range of the legal allowance. Issues that be banded by law, must be done according to law, should not be discretion. Issues without law comments, should be discretion according to the spirits, rules of law and the worth destination that law pursue. Secondly, percentage rate rule, administrative discretion should comply with the requirements of proper, necessity, symmetry, should not reach beyond the necessary limits, which may cause the damages. Thirdly, trust and protect rule. When discretion, we should protect the parties expect benefits, which is caused by their trust to our government. Fourthly, self-control rule. Administrative discretion should obey previous cases, especially in the same governing level. The administration tailoring can not be changed without rules, he must obey the correct rules which he has based in previous cases.This essay regards: in order to prevent abuse of the administrative discretional power, to ensure its correct use, a complete monitor banded system must be established. As it is not enough to ensure that only on the account of the governing staff will obey the law and regulations by themselves. The monitor system can have a comprehensive control on administrative discretion. The monitor system for administrative discretion is included by: Firstly, procedural bind. By the procedure of open government, show your position, not shown in relative, instruct, listen and proof, tell the reasons etc, to bind the administration tailoring behavior. Secondly, judicial review. If the party involved regards the governing behaviors harmed their legal rights, they have the rights to claim to the Court, then the Court can give another court that the governing behaviors are valid. Thirdly, the government can have regulations and limits to the administration tailoring by the way of making concrete rules, governing instruction and governing re-discussion. Fourthly, ethics bind. By the way of ethics education to the governing staff, to stimulate their position honor feeling and ethics responsibilities, when doing administrative discretion, they will not only be responsible to the outer regulations, but also be responsible to their own inner heart.To summary, there is a point of view in the learner's world, the range of administrative discretion can be smaller by the improvement of the legal, the writer thinks that as long as the social life is lasting, as long as the society needs governing, administrative discretion will certainly exists. The point of view that expecting to eliminate the amount of administrative discretion behaviors by the way of improving the law is impossible both in theory and practice. In the historical transforming period of our society, the society developed much quicker, the social relationship is more and more complicated, the governing rights have the enlarge trend in the range and on the strength. administrative discretion will surely enlarge, it can not be eliminated, or be omit, of course. What we should do is to do some necessary instruct and make rules. To ensure administrative discretion can be reasonably and legally practiced, to play its role fully.