Research On The Judicial Review Of The Administrative Discretion

Administrative discretion is a typical character of modern administration and it runs almost through the whole administrative actions. Meanwhile, the nature of being able to make alternatives makes the phenomenon of abusing law inevitable. As a core means of controlling and amending the discretion, judicial review faces many problems, one of which is how to balance the reviewing and respecting. This article introspects and structures the relevant theories and systems of judicial review.Firstly, on the basis of the alternative nature, the author thinks the scope of discretion concept should include the element of law and law consequences. Additionally, this section analyzes the rationality of the judicial review about discretion.Chapter two mainly emphasizes on the scope and principle of judicial review, by analyzing the reasons for administrative discretion to be conferred, the article points out that administration legitimacy and rationality all belong to the range of judicial review and indicates the shortcomings in "Administrative procedure law "in our country. Under the above mentioned opinions, this paper holds a different viewpoint that the principle of procedure law should be principle of being lawful and approximately rational, which distinguishes itself with the administrative substantive law.In the third part, through a comparison and analysis of the current situation, the author thinks the standard of abusing one's power can't include all illegal discretionpatterns. Based on a pair of concept: subjective discretion and result discretion, the paper puts forward the discretion standards: abusing power standard and standard of being obvious unreasonable. The former is embodied as improper purpose and irrelevant considerations. Because the latter doesn't require subjective intent, it means a wider application scope. Moreover, the obvious unreasonable standard can't be given a precise definition, so only legal principle such as proportion and equality can it concrete, which also accord with the train of thought comparison.In Chapter four, author considers that judicial power to modify administrative discretion is essential to raise working efficiency and better protect administrative counterpart's interests. On the other hand, the scope of the power used should be restricted to part discretion which only has two alternative choices.Finally, the article generally explains some other relevant systems which judicial review good operation depends on.