The Principle Of Reasonableness: Institutionalized Existence And Reconstruction

The research of academe on the administrative discretion and the principle of reasonableness has made material results, and attained some consensus. The controversy of whether the principle of reasonableness lies in our system of administrative litigation and how it lies, concentrates on the scholar thinking of the 54th provision of "misuse of authority"and "apparently inequitable administrative punishment"in our statute law of administrative litigation. The thesis will continue the old topic and base on the logic connection of "administrative discretion-----the principle of reasonableness", and puts out some new opinion on the scholar controversy. The thesis will begin with the introduction of counterpart of English judicial review. According to the unscramble of counterpart prejudication in the history of Britain, I will abstract the logic category of "administrative discretion------the principle of reasonableness", and based on the logic category, I will point out that if want to justify the review of court on the administrative discretion such as "misuse of authority"and "apparently inequitable administrative punishment", we must induct the principle of reasonableness. And based on the material of concrete cases, I will analyze that there still are states of unreasonable execution of administrative discretion in the rest representations of unlawfulness in the 54th provision of our statute law of administrative litigation. And I also point out that the reason of occurrence of this phenomenon is that the seven representations of unlawfulness of the 54th provision adopt different criterions of classification. The principle of reasonableness is to supervise the administrative discretion, and its meaning revolution is to better the supervision. In the second part, I will review the posture of "strict nomocracy"on the administrative discretion and point out that the common existence of administrative discretion is a fact, administrative discretion has a great effect on the individualized injustice and creative administration, the attitude that the administrative discretion is necessary a evil is metaphysical and is nocuous in the practice. Again based on the logic category of "administrative discretion------the principle of reasonableness", I think that the situation which the administrative discretion lies in changes, the criterion of the principle of reasonableness should change accordingly, and we should reconstruct the criterion of the principle of reasonableness. The thesis consists of three parts. The first part is the introduction about the intention of this thesis. The second part consist of two chapters. The first chapter, based on the comparative method and case law, concentrate on the institutionalized existence of the principle of reasonableness in our administrative litigation. The second chapter, based on the theoretical analysis, concentrate on that we should take administrative discretion seriously and reconstruction of the principle of reasonableness accordingly. The third part is epilogue, about some advices of institutional construction and aftertaste of this thesis.