Research On Judicial Discretion In Administrative Litigation

In traditional administration in modern times, administrative discretion had been restricted rigidly. At that time, people believed that: "the government which manages lest is the best". In legal system, they adopted "mechanical constitutionalism" that demanded any act of the government be authorized by law clearly. However, with the rapid increase in social affairs and increasing complication of social relations, the function of government has been strengthened rapidly, so legislator has to authorize administrative organization some even as extensive as possible discretion under the pressure of objective need. In order to avoid the abuses of executive power in the application of discretion, judicial power must be applied, administrative discretion must be examined by judicial organization, thus a problem arises: How does the court examine administrative discretion? The examination that the court exerts on administrative organization differs greatly from the examination that the court exerts on strict administrative act. Because the limitation to strict administrative act is provided clearly by law, the examination which the court exerts on it can be done according to law, the legal provision on discretional act is ambiguous, so the depth and the way of the examination is depended upon court, including the appropriate measure. This results in a new subject—judicial discretion in administrative litigation.In April 1989, the legislation and application of Administrative Procedure Law of the People's Republic of China marked the formal establishment of Chinese administrative procedure institution. After the practice in litigation over ten years, we have accumulated some experience in judicial practice, but we should know that: The theoreticalstudy in administrative litigation is not perfect, and the experience in judicial practice is not abundant. Especially in the historical period in which China changed from planned economy to market economy, due to the change from old law to new law and the limitation of written law itself, Chinese judge was doomed to encounter discretion more frequently in examining case by law. Nowadays, the voice of management of the country according to law and administration by law raises increasingly, the subject that studies "judicial discretion in administrative litigation" is especially urgent.