Functions And Governance Of Administrative Discretion Under The Government By Law

This thesis deals with administrative discretion in the government by law, analyzes the meaning of discretion and its relationship with rule of law and the government by law and puts forward the specific strategy and choice of institution to govern the disadvantages of administrative discretion. It holds that the research achievement of Jurisprudence in the issue of discretion should be absorbed and the understanding of the relationship between administrative discretion and the government by aw should be rethought and refined on the level of Philosophy in Branches of Law. Based on the fundamental objective of"abolish the unnecessary discretion, control the necessary discretion", under the background of Chinese conditions and premised on the view that not to pre-establish or stress some specific control mode of administrative discretion, it analyzes meticulously the actual effect of control over administrative discretion by legislation-administration-judicature and informal state power, then reach the control mode of discretionary power suitable for the objective of the government by law in China and the standpoint of good governance of government.This thesis also tries to demonstrate further the complex legal problems and social issues such as the game of interests caused by the use of administrative discretionary power based on the actual operation of legislation and administration and a large number of administrative litigation cases.This thesis can be divided into five parts:The first chapter title is"The essential role of administrative discretion in the government by law". Before dealing with the relationship between administrative discretion and the government by law, this chapter describes briefly the concept of"discretion"in Jurisprudence as well as the rule by law and discretion as unity of opposites. They are the basis for the analysis of the essential role played by administrative discretion in the government by law and provide a solid foundation of legal theory or Philosophy in Branches by law for the understanding of the relationship between administrative discretion and the government by law. This chapter describes the academic argument on the concept of"discretion"among the jurists Hart, Dworkin, Raz and MacCormick systematically and meticulously and analyzes their understanding of discretion based on different concepts of legal interpretation and right-duty perspectives. This thesis holds that discretion and rule by law demonstrate a reciprocal relationship of exclusion and compatibility;"administrative discretion"has its own meaning in branches of law while civil law and common law systems define it by different logic approaches and from different pragmatism standpoints. Law and discretion are two fundamental elements of public power, while administrative discretion is the essential element and indispensable tool for good governance of the government by law.The second chapter title is"Multiple roles of administrative discretion in good governance of government". This chapter examines the effects and side effects of administrative discretionary power on different levels. It holds that discretionary power is a special tool to implement the government's duties and benefits the"good governance"of government, and the proper as well as justified exercise of it makes up the deficiencies of legislation and the defects of judiciary supervision afterwards. The administrative discretionary power has its unique function in achieving the goal of people's livelihood including administrative efficiency, individual justice and welfare state. The four administrative litigation cases dealing with the right to change one's name analyzed in this chapter have especially proved administrative discretion's function of realizing individual justice. But we should not ignore the limit, danger and harmfulness of discretionary power. The administrative discretion is the"Trojan Horse"with potential danger hiding behind the government by law.The third chapter title is"Legislative control over abuse of administrative discretionary power". This chapter holds that we should reflect on China's own issues from the perspective of sociology. The rule of law is rule of rules to some extent, yet the existence and operation of administrative discretionary power in China usually lack grounds from higher-level law, either no higher-level law or only a rough one, thus giving up the control over discretionary power on the level of rules and regulations. This thesis analyzes the legislation deficiency of National People's Congress, especially gives the example of Law of the People's Republic of China on Public Security Administration Punishments, examines the specific legislative defects, and holds that legislation should provide a fundamental framework for discretionary power as well as absorb Dworkin's theory of control over discretion by principles, thus implementing the supplemental and restriction functions of legal principles. We still have not established the"rule of rules"effectively. Control over administrative discretion through legislation, as a mode with great potential for controlling and maintaining power, has not demonstrated its strength fully, and it is still the first choice for China.The fourth chapter title is"Regulation of administrative discretion by the mechanism of administrative self-restraint". This chapter summarizes the theories of administrative law in China, and examines the control over discretionary power by the system of administrative norms which is comprised of administrative regulations, administrative rules, administrative provisions and administrative interpretation, and the restriction of discretionary power by administrative reconsideration system through acceptance of disputes, incidental review, mediation and reconciliation at the same time. The administrative procedure has the dual characters of legitimacy and democracy, thus the procedure system is playing a role in regulating discretionary power effectively. This thesis holds a positive view toward the construction of discretion standards which is being carried out by various regions in China and the role of self-restraint in administration played by the reform of administrative system and organizations, law enforcement responsibilities and civil servants quality training system.The fifth chapter title is"Judicial check and review of administrative discretion". This chapter holds that establishing an administrative discretionary power mode predominated by judicial review of the People's Court in China should be treated prudently. This chapter repositions the constraint function over administrative discretion by the People's Court, reflects on the problems of limitation in acceptance scope of administrative litigations and high withdrawal rate, and analyzes possible influences toward administrative discretion of the transform of judicial philosophy to closing through mediation. Based on the analysis of specific administrative litigation cases, this chapter holds that the scope for the acceptance of administrative discretion disputes by the People's Court mainly includes seven categories which are administrative punishment that is obviously unfair, administrative omission, administrative license, government procurement, government information publicity, administrative procedure and review of administrative factual act. The standards adopted by the People'Court when reviewing administrative discretion include formal illegality, abuse of power, improper procedure and so on. There are five points as to the judicial limit for review of administrative discretion by the People's Court. First, the People's Court only has limited power of acceptance and judicial change. Secondly, the People's Court should try cases according to laws and regulations, refer to rules and quote administrative normative documents, and should not give a negative evaluation directly. Thirdly, the People's Court can review whether the administrative discretion was abused based on both legal rules and principles. Fourthly, sending judicial suggestions is a unique judicial review system of China. Fifthly, mediation and reconciliation is a new way to settle administrative discretion disputes for the court, yet has not been attached importance to.Finally, this thesis explores the frontier issue of administrative discretionary decision-making and believes that after good governance of government was adopted by the transparent and participating mechanism of civil society, administrative discretion becomes a part of public choice and public decision-making, deeply influencing the countrywide great discussions such as location of urban dump, merger and acquisition and permission of transgenic plants, which foretells that the administrative discretionary decision-making in our country has stepped into the stage of interest game. Under the mode of good governance of government, the governance model of administrative discretion becomes more and more complex, and various interest subjects and social power are also integrated into, rendering the administrative discretionary decision-making more and more difficult, which should be attached importance to.