Research On The Benchmark Of Administrative Licensing Discretion

The essence of administrative law lies in administrative discretion.The research on the governance of administrative discretion and its benchmark has always been a hot and difficult point in the research of administrative law.Among them,the academic community has carried out extensive and in-depth discussions on the legitimacy,technical structure,procedural control,judicial review and other aspects of the administrative discretion benchmark,and has achieved a series of research results,initially established the theoretical framework of the administrative discretion benchmark,and provided a theoretical basis for the governance of the administrative discretion and the system construction of the administrative discretion benchmark.However,throughout the research results of administrative discretion benchmark,the research purport and specific practice field of administrative discretion benchmark are still limited to administrative punishment,which makes the comprehensive and general administrative discretion benchmark system established by taking administrative punishment as an example constantly questioned.The difference of administrative act constitutes the root of the difference of administrative discretion benchmark.The difference of administrative penalty as the typical administrative act according to authority and administrative permission as the typical administrative act to be applied for constitutes the difference of administrative discretion benchmark.The existing discretion benchmark theory and system in our country are basically based on the administrative penalty discretion benchmark as an example and are mainly used in the administration of administrative penalty discretion,which leads to the "general" deficiency of the general theory of discretion benchmark and makes the discretion benchmark fall into the dilemma of full implementation,thus forming the necessity of the research on the administrative license discretion benchmark.The general theory of administrative discretion standard has the function of systematization,but if only a single study of the general theory of discretion standard will produce functional defects.The interaction between the general theory of administrative discretion benchmark and the general theory of discretion benchmark promotes the innovation and reform of the general theory and system of discretion benchmark.The research of administrative discretion benchmark provides a path for the improvement of the theory of discretion benchmark and the construction of the system,helps to extract the research topic of "moderate abstract level",can re-examine the distribution of the interests of administrative licensing behavior in administrative law and provide a new line Political behavior provides comments.The justification of the administrative discretion standard focuses on the consideration of the source and application of the power to formulate the discretion standard.The core is the basic proposition of legitimacy and rationality.However,there is still a view that the discretionary basis of administrative license is not legitimate,that the discretionary basis of administrative license violates the principle of legal reservation and does not have legitimacy,that the nature,formation and structural characteristics of the discretionary basis of administrative license make it lose its reasonable basis.From the two approaches of general license and specific license to respond to the query of administrative license discretion benchmark.In recent years,a large number of administrative licensing discretion standards have emerged,which provide fresh objects for the research of administrative licensing discretion standards.Through the standard examination of 50 administrative licensing discretion standards,there are serious symbolic "legislation" problems in administrative licensing discretion standards.However,the symbolic discretion standard does not conform to the essence of the functionalism of the discretion standard.Because of its symbolism,the discretion standard has lost part of its normative functions,and because of its lack of executive power,the utility of the discretion standard is damaged.In order to overcome the symbolic "legislation" defect of the administrative license discretion benchmark,we must return to the purpose of making the administrative license discretion benchmark,fully measure the necessity of making the administrative license discretion benchmark,and avoid the direct duplication of the license conditions set by the legal documents from the formulation technology,so as to realize the development of the administrative license discretion benchmark from formalism to substantialism.Technical structure is the soul of administrative license discretion standard,and effectiveness is the core of administrative license discretion standard.The understanding of the construction of the benchmark technology of administrative discretion is based on the summary of the monism of administrative discretion.At the same time,the overall face of the benchmark technology of administrative discretion must be constructed according to the difference between administrative concession and general licensing,and the technical construction of the legal elements and legal effects of the benchmark technology of administrative discretion must be established respectively.The construction of legal elements includes the refinement of legal licensing conditions,the interpretation of uncertain legal concepts in legal licensing conditions,the equal position of administrative licensing norms and facts,etc.;the construction of legal effects includes the effect construction of time limit,application materials,procedures and licensing results.The internal effect of administrative discretion standard and administrative penalty discretion standard is the same in nature and intensity,which is based on the summary of the common attribute of administrative autonomy standard,not because of specific circumstances and specific procedures.There are differences in the external effect between the administrative license discretion standard and the administrative penalty discretion standard.The administrative license discretion standard,as the examination and approval standard of the administrative organ and the preparation standard of the counterpart,has the duality,which is different from the administrative penalty discretion standard and mainly as the penalty standard of the administrative organ,thus forming the contrast between the license discretion standard and the administrative penalty discretion standard External force.The benchmark of discretion not only has the external effect on the counterpart based on the principle of equality and administrative practice,but also has the direct external effect on the counterpart due to its duality.Scientificity is the core discourse of administrative license discretion standard.The scientific standards of necessity,regularity,legality,purpose and relative consistency should be followed in the scientific formulation of the standard of discretion.In view of the existing blocking factors for the scientific formulation of administrative licensing benchmark,we should refer to the requirements of scientific legislation,follow the "bottom-up" scientific logic route,the scientific method of setting and cleaning up the benchmark,and formulate the "legislative" order of the benchmark document of administrative licensing after the regulatory requirements are formulated first,so as to formulate a scientific administrative licensing discretion Datum datum.The institutionalization of administrative licensing discretion is conducive to the unity of the regulatory system,which should be carried out around the establishment of authority and procedures.As the nature of law enforcement activities,the establishment of administrative licensing discretion standard generally requires that all administrative subjects have the right to establish the discretion standard,but in reality and possibility,some subjects should be limited in their ability to formulate the discretion standard.It is necessary to establish proper procedures for the establishment of administrative licensing discretion standards,including the public participation in the establishment of administrative licensing discretion standards,the publicity of administrative licensing discretion standards,the establishment of a hearing system for the establishment of standards,and improve the procedures for the change and abolition of administrative licensing discretion standards.The administrative procedure law excludes all administrative rules other than regulations from the scope of judicial review basis or reference.We should focus on the basis of rationality to make a scientific judgment on the judicial review status of the administrative licensing discretion benchmark.The author advocates that the administrative licensing discretion benchmark should be taken as the "reference" of judicial review.Of course,it is necessary to realize that the administrative licensing discretion standard as the "reference" of judicial review is different from the laws and administrative regulations as the basis of judicial review,and also different from the regulations as the reference of judicial review.Judicial review "reference" is a kind of relative "reference",that is,principle "reference" and the establishment of legal licensing discretion benchmark escape system.As the "reference" of judicial review,the premise is to review the benchmark of administrative license discretion,including whether it meets the substantive conditions and procedural conditions.The examination of substantive conditions requires that the benchmark of administrative licensing must be legal and effective;the examination of procedural conditions requires the establishment of the "incidental" examination mechanism of the benchmark of administrative licensing initiated by the application of the opposite party,the establishment of the explanation reason system of the benchmark of "reference" licensing,and the establishment of the follow-up processing procedure of not "reference" licensing benchmark.However,there are still some obstacles in the legal system for the establishment of the litigation status of licensing discretion benchmark as the "reference" for judicial review.In order to maintain the unity and authority of the legal system,we should make appropriate amendments to the administrative procedure law,administrative licensing law and other legal documents to meet the needs of the development of practice.