| The administrative discretionary standard has become a hot topic in both theorists and practitioners of Administrative Law currently. With the hope of overcoming the arbitrariness of administrative discretion and restricting the abuse of administrative discretion, administrative authorities refine and quantitate the range of discretion of legal norms through constituting discretionary standard. However, with the growing phenomenon of administrative law, its effects are in a dilemma: Is the discretionary standard of legal effect? Built by the administrative authorities, who are not legislatures but law executants, can the discretionary standard consequentially constrain the specific administrative discretionary activities? What kind of impact will the constitution of discretion bring on the rights and obligations of executive relative and the administrative judicial activities of courts? If the binding of discretionary standard is recognized, what is the legal basis for that? And if denied, is there any necessity for it?This article will analyse and prove the effects of discretionary standard on the basis of principles of law and relevant legal provisions. Firstly, the legal basis and jurisprudence fundament of discretionary standard are analyzed to conclude that discretionary standard has a self-evident binding on administrative enforcement and should become an important basis for administrative enforcement as a kind of administrative rules, based on legitimate, reasonable, just and the leadership and supervision relationship between the upper and lower levels; Of course in certain circumstances, administrative organs should be allowed to escape discretionary standard established by upper administrative authorities according to the actual conditions if there are good reasons.. And this inner applied force, through the specific executive enforcement activities of administrative authorities, will extend to cause a real impact on the relative, and make it binding on the actual relative; And the enforcement activities also repect the administrative activities if they are legal and reasonable. Secondly, the inner impact on administrative organs and the outer impact on the relatives and its.status in administrative judge are analyzed separately from the specific situation of legal effects of China's discretionary standard in details, which made by the discretion basis that with regulations and other forms of normative documents as its vector. Finally, some problems involving realization of the effects of discretionary standard are proposes. In order to achieve the effects of discretionary standard, a rational mode of operation of discretionary standard should be promoted. |
