On The Power Of Administrative Discretion

The power of administrative discretion is not only a complicated and abstruse theoretical problem, but also a practical one, which is badly in need of solution during the course of management. Though scholars at home and abroad have approached instructive researches, yet these researches are not systematic or deep enough, especially there hasn't been a monograph. At present, discussion about this kind of power are mainly in the following aspects:1. Definition of the power of administrative discretion. In the following books, there have been different definitions: "Black Law Dictionary" of America, "Oxford Law Dictionary" of Britain, "Administrative Law Dictionary" of Japan, "Administrative Law" written by Chen-xinmin in Taiwan, and "Essentials of Administrative Law" edited by Wang-mingcan in China. But in the definitions, several disagreements still exist, such as, whether the performance of this kind of power should definitely be authorized by law, and whether this kind of power should be examined by judicial department. So there hasn't been a united definition.2. The classification of the power of administrative discretion. In the book "On the Power of Administrative Discretion and Law Control ", professor Jiang-mingan divided the power into wide, medium and small discretions. But the conditions of this kind of classification are not exact, so the definitions are not very scientific. In the book "The Basic Theories of Administrative Law in China ", proffessor Yang-haikun raised that, according to the relationship between the regulation of law and the power of administrative power, it should be divided into independent discretion, discretion of its own choice, and urgent discretion. This kindof classification definitely raised the classification of general and urgent discretion, so it is good for the better regulation of the power of administrative discretion, but the disadvantage is that he restricted the power of administrative discretion into specific administrative action, which doesn't conform to the actual situation of our country.3. The principles which should be followed. In the book "Power and Control", Sun-ninhua raised that the performance of the power of administrative discretion should follow the principle of legal administration and the principle of reasonable administration. But the two principles are not aimed at the power of administrative discretion, but aimed at the power of administration. So it is too general and not concrete enough. In the book "China's Administrative Law Which Has Strode into 21st Century", professor Yang-haikun held that, we should follow the principle of proportion, the principle of discretion, the principle of public interest the highest, the principle of equality, and the principle of administrative sincerity. But he didn't solve such problems as, whether the principle of public interest the highest conflicts with the principle of proportion; and whether the principle of procedure should be singled out as an independent principle, etc.4. The abuse of the power of administrative discretion. In the book "On the Scope and Nature of the Power of Administrative Discretion", Yao-ruimin held that, the abuse of administrative power is the abuse of the power of administrative discretion. In "Administrative Law of France "and "Administrative Law of America ", Wang-mingyang raised the forms of the abuse of the power of administrative discretion in France and America. But only after we take into account the actual situation of our country, can we get the forms of the abuse of the power of administrative discretion in our country. In the article "To Probe into several problems on the Power of administrative discretion", Si-jiugui held that, the abuse of the power of administrative discretion should be divided into illegal form and unsuitable form. But the limit between the two forms is very vague, which is unfavorable for the control on the abuse of the power of administrative discretion.In view of the reasons above, I believe, the di...