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On The Internal Control Of Administrative Discretion

Posted on:2010-07-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:H F LuFull Text:PDF
GTID:1116360272998295Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Discretion is one of the fundamental characteristics of modern administration and it is an indispensable means for the application and execution of laws, the realization of administrative objectives, the provision of public goods and the enhancement of social welfare. While at the same time, the abuse and violation of discretion is more than possible. With the enlargement of administrative scale, this anxiety of people becomes more serious. Therefore, the control of administrative discretion becomes an important topic in modern administrative law. In previous studies, researchers tend to investigate and explore the supervision and control of administrative discretion in an antagonistic context, a context that emphasizes the unequal and hostile tension between administrative organs and the administrative relative parties. This method asserts that in order to curtail the evil of administrative discretion and to protect personal interests from being molested by administrative powers, only external forces can be relied upon in the control and restriction of administrative powers. Hence people's attention on the legislative and judicial control of administrative discretion. However, it is held in this paper that two fundamental questions are neglected in the researches on the regulation, supervision and restriction of administrative discretion: first, external control per se has its inherent defects; second, it is possible for administrative organs to regulate themselves and to do good. The former tells us that mere external control cannot guarantee the realization of administrative justice and the internal control is a necessary complement; while the latter suggests that administrative organs can self-regulate via certain mechanisms.The studies on the internal control of administrative discretion have long been performed in the west and a knowledge system has taken shape, e.g. Discretion Justice by Davis, Bureaucratic Justice by Mashaw, The Executive in the Constitution: Structure, Autonomy and Internal Control, etc. They are all examples of the intellectual endeavors to explore administrative discretion from an internal perspective. As far as the relevant research in China is concerned, the research perspective is still external, which leads to the difficulty in the clarification of the real meaning of the regulation of administrative discretion. The change of perspective in this paper is intended to provide a helpful theoretical direction in the realization of administrative justice by administrative discretion.This paper consists of three parts, namely the introduction, the main body and conclusion.The introduction part dwells on the formation of the thesis statement and the demarcation of two basic questions. Then necessary of subject matter has been presented and finally brief introduction has been given to the research approach and the framework of the whole paper.The main body is made up of five chapters.Chapter one centers on the theoretical possibility of the internal control of administrative discretion. The major purpose of this chapter is to point out the necessity of internal control. This chapter starts with the administrative discretion itself and it is proposed that discretion is an important feature of modern administration and is an indispensable means for the realization of administrative justice. This is followed by regular modes for the regulation and control of administrative discretion: the external control centered around legislation and jurisdiction and its defects, which main comprise of the limitation of control effect and its high cost. With all these as a basis, the internal control of administrative discretion is presented. Although the internal control is theoretically necessary, it is not necessarily a new consistent category in administrative law studies. It needs proof. In this chapter, the theoretical justification of the internal control of administrative discretion is first concentrated on, which includes the basis of humanity and the disciplinary basis. In terms of the basis of humanity, it is held that the morality of administrative officials is an important basis for the internal control of administrative organs. The governmental officials has the moral potential to constrain, regulate and control themselves. In terms of the disciplinary basis, the analysis is done from perspectives of modern administration, legal culture studies and administrative law, etc. The theory of good governance in modern politics, the official morality in traditional legal culture and the internal supervision theory in administrative law studies can all provide theoretical soil and resource for the generation of the internal control of administrative discretion.Chapter two is mainly about the legitimacy of the internal control of administrative discretion. The legitimacy of the internal control of administrative discretion is focused upon. In the present framework of law, the principle of equal treatment and the responsibility of the administrative heads in our Constitution, the reservation clauses in the Law of Legislation and the range of the administrative proceedings in the Administrative Law can provide the legal basis for the internal control of administrative discretion.Chapter three dwells on the conditions of administrative discretion. The internal control of the administrative discretion is not a mere theoretical imagination, and it has its real conditions. In other words, our administrative practice proves that our administrative officials have the capacity to control themselves and to do good. In this chapter, the real conditions of the internal control of administrative discretion have been presented from four perspectives: the transition of the conception of governance from power-orientation to right-orientation, of the objective of our government from management to service, of the mode of governmental action from compulsion to non-compulsion and the updating of the governing organizations and the power structure. The changes in these respects become the actual basis for the generation of the internal control of administrative discretion.Chapter four is mainly about the significances of the internal control. The theoretical significances of the internal control of administrative discretion are developing the horizon, methodology and content of administrative science. With this as a basis, it is further pointed out that the internal perspective of administrative law will definitely bring some changes for the external perspective, changes about our conception of the function, the principle and the status of administrative law. In this are also the new question opened up by the perspective of internal control of administrative discretion. The practical significances of the internal control of administrative discretion are then pointed out. To be specific, the internal control can promote administrative efficiency, update the efficacy of the external control and enhance the harmonic relationship among administrative relative parties.Chapter five focuses on the construction of the mechanism of the internal control of administrative discretion. Compared with the external control, the internal control is different in that it relies more heavily on the morality of the administrative officials, hence the vital important of the moral constraint. This means that in the construction of the mechanism of the internal control of administrative discretion, the mechanism of moral constraint is an important part. It is here proposed that the mechanism of internal control of administrative discretion consists of a two-layered structure, the mechanism of institutions and that of morality. In terms of the mechanism of institutions, the mechanism of the internal control is elaborated from three perspectives: the standard of administrative discretion, the precedents of administration and the internal supervision of administration. In terms of the standard of discretion, it is explained systematically from its connotation, its justified basis, its legitimate provision and its regulative efficacy and limitations. In the part of administrative precedents, their functions in the administrative discretion and the criteria of their judgment have been discussed. In the part of the internal supervision of administrative execution, attention has been paid to the institution of filing, of assessment, of self-dissention and of internal examination and punishment concerning mistakes. These can all play their part in the redress of misplaced and illegal discretion. In the section of the moral mechanism, it is held that the administrative system consists not only of institutions, personnel and mechanisms, but of the ideological foundation, conception of values, professional ethics and the behavioral mode under them. The latter is a relative stable part in administrative systems and it deserves our due attention. In this chapter, emphasis has been attached to the self-cultivation capacity of the civil servants, the rational consciousness of responsibility and the professional ethics. In terms of self-cultivation, public servants should pay attention to the conscious cultivation of their abilities, their self-control and their legal conceptions and consciousness. In terms of the rational consciousness of responsibility, with the analytical framework of subjective and objective loyalty as a basis, it is pointed out that the subjective loyalty lies in the belief of the public servants in loyalty, conscience and identification and it is an important factor in restraint of administrative discretion. In terms of the professional ethics of public servants, their administrative conscience is the guide in their choice of behavioral mode, and their legal as well as factual judgments and it can be used as a basis in the understanding of and reflection on the behaviors of public servants.The last part of this paper is the conclusion. It is again emphasized that this research on the internal control of administrative discretion does not intend to negate the importance of the external control via legislative and judicial powers, rather, it is hoped to provide a helpful new approach for the harmonic governance via exploration of the self-constraint and self-regulation.
Keywords/Search Tags:administrative discretion, internal control, theoretical possibility, legitimacy, construction of mechanisms
PDF Full Text Request
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