Research On Applied Techniques Of Administrative Discretion Benchmark

The rule of administrative law centers on the rule of administrativediscretion,but the regulation on administrative discretion should not belimited to the institutional setting of administrative discretion benchmark,and attention should be paid to the technical application of the benchmark.The technical problem in the application of discretion benchmark is how to apply the benchmark to the practice of administrative law enforcement in a non-mechanized and skilled manner,so as to make administrative decision more legitimate,more reasonable,more accurate,more rational and more acceptable,and the problem should be the core and destination of regulating the exercise of discretionary power.Taking the administrative penalty case of Fanglin Fu frying goods store as an example,it is proposed in the paper that the legal applied techniques,including the techniques of illustrating the application cause of the discretion benchmark,the technique of balancing interest conflicts in the application of the benchmark,the technique of enforcing the application of the benchmark with administrative evidence and the techniques of escape application,shrinkage application and selection application,dominate the value,fact,specification and procedure of administrative enforcement of law,relate to the pursuit of individual case justice and determine the concrete realization of essential rule of law.The applied techniques of administrative discretion benchmark originate from the theoretical system of legal methodology.Exploring the legal methodology for the construction of administrative law,and providing systematic theoretical support and institutionalized technical supply to the applied methods of administrative law rules should become the mission of administrative law research as well as the era subject for the development of administrative law in China,and more importantly,it can open up a road of technological rule of law in the dimension of “legal methodology”.Introduction.It's necessary to transform the focus of administrative organs' regulation of discretionary power from the simplex act of making discretion benchmark to the research of technical application of the benchmark after its generation.This problem consciousness arises from the lessons drawn from discretion theory,the response to law enforcement practice,the judgment of the development direction of the rule of law and the willingness to enrich the subject theory.It is of theoretical significance,practical value and innovativeness to construct applied techniques and corresponding theories for discretion benchmark,and to build the research system and framework of administrative legal methodology by referring to the research results of the applied techniques and theories of discretion benchmark.Based on the summary of the research status of the applied techniques of the discretion benchmark,the research should emphatically integrate the practice of administrative law enforcement to sort out and extract the applied techniques of the discretion benchmark,to stay close to the original background of the specification application and detachedly reflect on the applied techniques,and to study the applied techniques under the general framework of administrative legal methodology.Chapter 1 Applied techniques of administrative discretion benchmark.In terms of the confirmed standard,the applied techniques of discretion benchmark should not only cover "technical means and rules for controlling the exercise of administrative power",but also include "technical methods and principles for regulating the application of administrative rules".In terms of "system composition",the applied techniques of discretion benchmark consist of the "primary system" and "supplementary system".The former includes the technical means and application rules for illustrating cause,balancing of interest and evidence reinforcement of the benchmark,and focuses on solving the problem of "technical support for the realization of the application effectiveness of the benchmark";the latter covers the technical methods and application principles of escape application,shrinkage application and selection application of the benchmark,and places emphasis on the problem of "technical guarantee for the realization of the application legitimacy of discretion benchmark".The applied techniques of discretion benchmark and corresponding theories included in the two kinds of technical systems together provide substantive methodological solutions for the legitimate and effective operation of discretion benchmark.Chapter 2 Technical guarantee for the realization of application legitimacy of administrative discretion benchmark.Although the existence and application of discretion benchmark is reasonable in reality,it may not be legitimate under the framework of the rule of law.The legitimacy of discretion benchmark and its application derive from the extraterritorial breakthrough of restrictive authorized theory,and originate from constitutional law's direct stipulation of "administrative legislative power" and definite restriction of "the absolute retention principle in law" in Chinese mainland.The paradox between "strict rules" and "discretion" will impede the realization of the legitimacy.The techniques of escape application,shrinkage application and selection application of the benchmark can provide technical guarantee for the realization of discretion benchmark and its application legitimacy from the perspective of paradox resolution.Chapter 3 Technical support for the realization of application effectiveness of administrative discretion benchmark.Whether discretion benchmark can produce applicable effect on the track of legitimacy relates to the problem of "application effectiveness of the discretion benchmark".Since discretion benchmark is an administrative authority order inside the administrative organ,the realization of its internal application effectiveness is a matter of course.The criteria for testing the external application effectiveness of discretion benchmark include "excess of discretion","abuse of discretion" and "discretion of laziness".Based on these criteria,it is necessary to introduce technical means such as illustrating cause,balancing of interest and evidence reinforcement in the application of discretion benchmark,so as to provide technical support for the realization of the external application effectiveness of the benchmark.Chapter 4 The applied technique of illustrating cause for administrative discretion benchmark.Taking the Fang Linfu case as an epitome,the present administrative organs have technical mistakes when illustrating the cause for the application of discretion benchmark.It is a universal obligation for administrative organs to illustrate the cause for the application of discretion benchmark,and the fulfillment of this obligation provides an effective solution to correct the technical mistakes.Illustrating the cause for the application of discretion benchmark has specific technical requirements in terms of reasoning degree,effect,logic and timeliness.To meet the technical requirements of reasoning,certain technical means need to be executed to guide and regulate the behavioral process of reasoning.Chapter 5 The applied technique of balancing of interest for administrative discretion benchmark.The technique of balancing of interest is the core of the applied techniques of discretion benchmark.The goal of balancing of interest should be the balance under the standard of "appropriateness".The construction of the technique of balancing of interest should be based on the realization of this goal.To this end,it is necessary to determine the specific operational approaches of balancing of interest through technical means such as discriminating,evaluating and relocation of interests,besides,general legal principles of administrative law should be introduced the as the tool for the application of balancing of interest,and overall considerations should be given to various internal and external factors involved in the case which affect and restrict balancing of interest.Moreover,the procedure openness and procedure participation systems which embody the "intercourse" paradigm should be introduced and constructed in the process of balancing of interest,which can act as the realization mechanism for interest communication.Chapter 6 The applied technique of evidence reinforcement for administrative discretion benchmark.In the application of discretion benchmark,it is necessary to collect and use evidence involved in the case and facts outside the case to prove the rationality of the application of discretion benchmark.Although the facts outside the case are uncorrelated to the fact of the illegal act of the administrative counterpart,they play a subsidiary role in the justification of the rationality of the application of discretion benchmark,as well as supplement or reinforce the rationality of discretion decision.The construction of applied technique of evidence reinforcement for discretion benchmark is governed by the rationality goal of discretion benchmark application.Centering on the realization of the rationality goal,evidence reinforcement technique is embodied in specific techniques of administrative evidence collection,proof burden bearing and use of proof standard.Chapter 7 Supplementary techniques for the application of administrative discretion benchmark.The escape application of discretion benchmark should follow the "rule of light sentence".The condition elements and controlling factors of escape application jointly determine the necessity,feasibility and rationality of escape application.Taking the administrative domain to prevent dangers as an example,the shrinkage application of discretion benchmark should meet specific constitutive requirements and hold a discreet position.Discretion benchmark has the problem of selection application.The selection applications of discretion benchmark in hierarchy system and after specification change both involve relevant technical methods and principles.Conclusion.With the application of artificial intelligence technology,a discretion decision still needs to be made through administrative discretion and the application of discretion benchmark and its applied techniques.The introduction of artificial intelligence technology will exert substantial impacts on discretion and the application of discretion benchmark,thereby updating and innovating the applied techniques of discretion benchmark and enriching their connotation and extension.The applied techniques of discretion benchmark can be traced to the theoretical system of "legal methodology".The research and application of legal methodology and administrative legal methodology are of practical significance to law enforcement practice and the change of the development direction of the rule of law.The entry point and solution to exploring the feasibility of constructing administrative legal methodology lie in the establishment of the "research system and framework" of administrative legal methodology.