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Concerning Administrative Discretion Of Legal Control In China

Posted on:2010-05-08Degree:MasterType:Thesis
Country:ChinaCandidate:C LuoFull Text:PDF
GTID:2166330338482154Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
Administrative discretion refers to the administrative subject in the laws and regulations of the principle and scope, based on laws, regulations and administrative purposes and spirit, the administrative legal relation between independent judgment, seek truth and law, and accordingly multi-through-transport does not make or a specific administrative act, the power of the specific administrative act, the scope of jurisdiction, type, amplitude, the free choice as. Administrative discretion of widespread is the inevitable requirement of modern administration, is to improve the efficiency of the administrative law, it is necessary to overcome the limitations of hysteresis and language expression. However, the abuse of administrative discretion and will damage the lawful rights and interests of the administrative relative to the principle of the rule of law, therefore, poses a serious threat to how to control the administrative discretionary power, it is very necessary to study. Can say, the control of administrative discretion is the expansion of self to restrain power, is to achieve a new constitutional state administration according to law, the key is to ensure the rights of civil society, is the guarantee the legal rights of administrative countpart, it is necessary to protect the civil servants. How to control the administrative discretionary power has a variety of ways and means, and from the perspective of legal control system perfect, to implement of administrative discretion to control, is an important and fundamental approach.China's administrative discretion to exist, mainly for abuse of justice, not lost: perform legal responsibilities as or delay, the consideration, purpose, violate statutory procedures, etc. Investigate its reason, mainly has: administrative discretion itself easily abuse, excessive fatigue and control rights authorized by the administrative procedure law construction, the weak, the administrative law enforcement environment needs further improvement and administrative law enforcement personnel quality, etc. How to control the administrative discretionary power abuse, both countries around the world, China is the academic and jurists practice sector generally care and common need to solve a problem. In the present situation and the real conditions, from legislation, administration shall control monitoring and control level of judicial trial, constantly perfected. One of the major legislation perfection control methods include the procedural law, formulate a unified administrative discretion application scope, strengthen the administrative law enforcement subject of legal liability in the prevention and recovery legislation, administrative discretion abuse on legislation, through the legislative interpretation perfecting legislation system, etc. Strengthen administrative self-monitoring refers mainly to formulate specific: administrative departments, administrative discretion benchmark discretion record examination system, regulating the administrative discretion and evaluation system, and improve the system of administrative discretion damage compensation, and improve the quality of administrative law enforcers, strengthen internal supervision measures; etc. Strengthening judicial judge charged mainly includes: establishing the legitimacy and rationality of judicial review principle, judicial review standards, and gradually expand the scope of judicial review and perfect relevant supporting system, etc. Through the above three aspects of strengthening, thus establishing and perfecting the legal supervision system, to control the administrative discretionary power abusing goals.
Keywords/Search Tags:Administrative discretion, Discretion abuse, Discretion control, Legal control
PDF Full Text Request
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