On Administrative Discretion And Its Judicial Review

Right of discretion is likely to be abused since the first day it comes into being. What rule of law requires is not to eliminate administrative discretion but limit extensive administrative right of discretion. Therefore, administrative discretion must be limited because of requirements of modern society of law of rule for controlling administrative discretion and damages that easily caused by administrative discretion in real social life. Among all systems controlling administrative discretion, judicial control is absolutely the most efficient way. Administrative discretion is basic concept in modern administrative law. American and British administrative law puts emphasis on the description of administrative discretion, while there is seldom explicit definition for administrative discretion. American and British legal system studies administrative discretion in a wide range, almost covering the whole administrative law; while continental legal system put emphasis on analyzing administrative discretion from the perspective of concrete administrative act, confining administrative discretion to administrative act. There is no discussion about other types of activities except administrative act in discretion theories. American and British legal system emphasizes on analyzing administrative discretion from the perspective of degree, while continental legal system emphasizes on entity aspect thereof. Scholars in our country classify administrative discretion into two categories, broad administrative discretion and narrow administrative discretion. The former deems that administrative discretion not only refers to right of discretion for concrete administrative act, but also that for abstract act. The latter deems that administrative discretion act only refers to right of discretion for concrete administrative act. Administrative discretion refers to the right that administrative subject makes flexible choices according to subjective reasonable judgment when carrying out concrete administrative act on basis of objective real conditions within principles, purposes, spirit, scope and range prescribed by laws and regulations. When operating administrative discretion, it shall be confined by legislative purposes and fair reasonable principles. Legal requirements of administrative discretion are flexible; administrative procedural choice of administrative discretion is elastic and whether decision of act is made in administrative discretion is flexible, hi the process of evolution and development of administrative discretion, the most visible influence comes from government administration's development and change and the decisive factor comes from economic field. Expansion of administrative power and increase of governmental functions lead to expansion of administrative discretion. Administrative authorities overcome limitation and make up defects of discretion of strict administrative act by employing administrative discretion, which becomes an important tool for government. Administrative discretion is the most direct way to achieve the efficiency value of administrative law. The existence of administrative discretion is necessary with features of laws and regulations themselves. The objective social foundation of administrative discretion determines the necessity of its existence. Features of modern administration itself determine the necessity of the existence of administrative discretion. It is urgent to control administrative discretion in order to realize administrative rule of law. Illegal act make administrative discretion cause low administrative capability, harmful for administrative rule of law. It is invisible to surpass or abuse administrative discretion. Illegal act causes administrative discretion harmful for social stability. Administrative rule of law requires all disputes in administrative law shall conform to judicial authorities' control, accept judicial review and guarantee judicial relief. Authorities may be unable to do as much as one would like to in front of many administrative discretion acts because of lack of special supervision authorities, diversified supervisory control measures and supervisory check procedures that make administration frequent, further and systemized. There are defects in administrative authorities' auto-regulation. When upper administrative authorities resolve disputes between lower administrative authorities within the same system and their counterpart, they may incline to take sides with their lower administrative authorities and therefore the justice of administrative authorities' self-supervision is lack of efficient insurance.Besides, the supervision of political consultative conference, the public, the press and so on is lack of coercive force and constraining force, making supervision not forceful. It is rather necessary to carry out judicial review for administrative discretion. The tenet of judicial review for administrative discretion is: promote the efficient operation of administrative discretion and guarantee administrative efficiency; safeguard administrative counterpart's lawful rights and interests and promote administrative justice; regulate proper enforcement of administrative power and inhibit administrative corruption. Principles of judicial review for administrative discretion are: principle that exceeding one's power or authority is void; principle of appropriate administrative review; principle of respecting administrative authorities' priority to inspect and guaranteeing administrative authorities' right for final inspection. Content of judicial review for administrative discretion are: legal foundation for administrative discretion inspection act; whether administrative discretion inspection act is in accordance with legal purposes; whether the decision of administrative discretion inspection act shows justice; whether administrative subject of inspection purposefully postpones making the decision of administrative discretion inspection act; whether administrative subject of inspection randomly explain elastic legal phrases; procedures of inspecting administrative discretion; whether administrative subject of inspection violates proportional principle. Method of carrying out judicial control for administrative discretion is whether people's court makes legal entity judgment for administrative discretion act of disputes. Methods of judicial suggestions are those of carrying out judicial control for administrative discretion. It is significant to carry out judicial review for administrative discretion. Judicial review is helpful for supervising and controlling the abuse of administrative discretion; judicial review is helpful for promoting administrative authorities to strictly execute the law and improving administrative efficiency; it is the requirement of establishing modern market economic law-ruled country to carry out judicial review for administrative discretion. Fr/)m the real conditions of our country, controversies caused by...