On The Polycentric Governance Of Administrative Discretion

Administrative discretion is the important features, but also the indispensable content and method of modern administrative activities. With the expansion of executive power, the expansion of administrative discretion is inevitable. On the one hand,it highlights the irreplaceable role of administrative discretion, on the other hand, it's more likely to expose the soft rib of administrative discretion - potential for abuse. The role of administrative discretion has already obtained universal affirmation, but the social problems caused by administrative discretion causes more extensive attention, academia even raised a study upsurge of the control on administrative discretion, some scholars highly praise the law, some prefer government's internal regulation, of course there is also some scholars who appeal the control of inside and outside,carrot and stick. No matter which kind of claim or concept for the control of administrative discretion provides beneficial exploration, good advice, also plays a role in practice level, but the paradox between the high development of the theory and the stagnant of practice become a fact that we won't see of today's administrative discretion control, meanwhile the law's control and the government's own constraints facing some irreparable defects, such as the uneven of personnel quality, the lack of social responsibility, and the imperfect of supervision mechanism, all added obstacles for effective control of administrative discretion. Therefore, based on the analysis of traditional legal control, this paper in the perspective of public governance proposed polycentric governance mode of administrative discretion, "more center - cooperation" is the core and soul of this kind of mode, each participating subject through mutual respect, recognition, cooperation and restriction, construct a network of polycentric governance, compensates the defects of traditional legal control and government regulation to a certain extent, as for the mechanism and practice of this kind of governance still need continually further research and exploration.Judging from the overall framework, this paper will be divided into three sections: the introduction, text and conclusion.In the introduction, the author firstly introduces why to choice this theme, including analyze the two-sides of administrative discretion, and the role and the problems of traditional legal control, and based on this proposed the possibility and necessity of polycentric governance. Secondly, the author limits and explains the core concepts clearly of this paper, including the scope of administrative discretion and the status of polycentric governance. Finally, this paper briefly introduces the research path and framework.The text is divided into four chapters.The first chapter is necessary theoretical matting. First is the analysis of the concept of administrative discretion, through the introduction of several representative viewpoints of past scholars from different law system, summarizes three elements the administrative discretion: first, administrative discretion is a selective power, including inaction and choice, and the choice of relevant discretion time, procedures, amplitude etc problems; Second, the exercise of administrative discretion shall not exceed the necessary boundary; Third, administrative discretion should accept the judicial review. The second part of this chapter is introducing and analyzing the research venation of administrative discretion governance at home and abroad, these researches of administrative discretion take the legal control as a starting point, especially emphasizes the role of judicial review, due to the earlier research of foreign scholars, also have good practice soil, the breadth and the depth of their theory and practice has set an example for our research on administrative discretion governance.The second chapter is the logic conversion from traditional legal control to polycentric governance. This chapter is also divided into two parts, First part based on the affirmation of traditional legal control and the analysis of the problems, points out that as a kind of external control,the legal control possesses irreparable defects, so must seek more effective governance mode. The second part is the feasibility analysis of polycentric governance of administrative discretion, mainly has three points: one is the problem of administrative discretion as a kind of public problem is the logic starting point of polycentric governance; Second is democratic political system provides the institutional guarantee for polycentric governance; Three is the expansion of administrative discretion makes the polycentric governance become inevitable.Chapter three is the excavation and analysis of participating subjects, is also the main content of this paper. Based on listing multiple participation body of polycentric governance, this chapter selects three main subjects, namely government, non-profit organizations and citizens. The government is a leading subject, non-profit organization is in the governance structure layer, the citizens governing subject is the most extensive management subject, the three have their own characteristics, play to their respective role, through the coordination and cooperation constructs a multicenter co-operative governance network of administrative discretion governance.The fourth chapter is the exploration of polycentric governance's operation rules, the emphasis on every subject mutual problems, including the mutual respect, mutual cooperation, mutual restrict of different subjects. Among them, the mutual respect is premise, including mutual recognition and trust; Mutual cooperation is the core, focuses on the theory standard of mutual cooperation and the construction of cooperation system; Mutual restrict is security, including the restriction based on mutual respect and the restriction of public responsibility. Mutual problems decided the polycentric governance's operation rules, destined to throughout the entire process of polycentric governance of administrative discretion.The third part of this article is conclusion. In conclusion, the author once again stressed the advantages and disadvantages of the administrative discretion expansion and the urgency to control the exercise of administrative discretion, further expounds the important role of polycentric governance in public domain, and proposed the challenges which our country current implements multicenter participatory governance faces, namely the contradictions between further research of theory and the stagnation of practice, and the restriction of specific conditions and national quality.