On Judicial Review And Standard Of The Action Of Administrative Discretion

Administrative discretion is the administrative jurisprudence core question. The modern government has already differed from "keep night watch person" role of traditional government, Decides after deliberation the power in the administrative government by law's today administration the form obviously in "from the cradle to the grave", Regarding in civil life each corner. However cut the misuse of administrative discretion also follow to the administration, create match a rule of law principle of energy be available control the administration cut the law system of measuring misuse of administrative discretion for at that moment our country particularly for importance, judicial review beyond doubt meeting is head be it choose.For setting up science sound to judicial review standard system, The sound our country current administration legalization states, Textual writing with current our country from omnipotent government to finite government of the social transformation expect for social back ground, With draw lessons from abroad and have already had system for theoretical basis, Introspect the scarcity of our country current《administration litigation law》and related judicial interpretation, Dialectical analytical state council cuts to measure power progress specification and the administration and thin turn standard of the implementation condition of total object, Will propose an our country on the writer at this foundation advance the judicial review and standard of the behavior of administrative discretion. Is then court of the people and administration turnkey to hold, making the administration cut to measure behavior can bring benefit to a citizen on the legal and fair track.This text contents is totally divided into three parts. The first part is the general theory introduction that cuts to measure the behavior judicatory reviewing and standard and the administration. First carries on the careful analysis in the concept use, explained that the use administration decides after deliberation the power the reason, based on this and defines the administration to decide after deliberation the behavior and to its description and the classification; Then the introduction judicial review and the review standard's theory question, pointed out that the current our country academic circle uses the review standard concept existence the wrong situation, then the author will examine standard and the related concept carries on the discrimination; Finally carries on to the UK-US legal system and the mainland legal system's review standard introduced briefly that comes take this as our country's review standard to use for reference.The second part is decides after deliberation the behavior judicial review standard to our country administration the present situation analysis and the narration. First pointed out that the negative effect which the administration decides after deliberation the power the existence to have the positive role which and brings, indirect showing decides after deliberation the power to the administration to perform the essential control or the restraint; Then pointed out that our country present administration procedural law and the related judicial interpretation's legislative present situation and the deficiency, the analysis current government formulates the administration to decide after deliberation the flaw which the datum exists, through the above elaboration system explained that should decide after deliberation the behavior in our country to the administration to carry on the judicial review and to establish the review standard; Finally decides after deliberation the general idea which and the special idea to the administration the behavior the review standard should insist introduced that comes to complete the theory upholstery for this article third part.The third part is set up our country the administration cut the reviewing standard of quantity behavior. Carry on to analyze its character in detail while defining to investigate standard notion first, deepen the search depth of contrast instance reasonable standard with this, and emphasize it and judge condition etc. notion of different section; Then the main contents of contrast instance reasonable standard carry on an instruction and include to investigate a form, investigate procedure and investigate intensity and assize condition and lay equal stress on to click to discuss to judge condition poetion; At last for making reasonable this all new reviewing standard of ratio able to be judicatory practice apply, will enumerate the appliance process of case instruction ratio reasonable standard.