Study On The Margins Of Appreciation In Examination

The numerous and complicated national standard examinations have been of indisputable existence. However, in the process of scoring the testees there are many factors that affect the final results of the examinations, that is, are there any margins of appreciation in examination? What are the range and the judicial review standard of the margins of appreciation in examination? How to control the margins of appreciation in examination?This thesis is composed of four parts.In the beginning part, the writer introduces two cases and puts forward the concrete problems existing in the cases. The problems involved are as follows. What is the particularity of the grader's judgment of the identical papers and grade while exercising the executive power? Is the court entitled to and if it is, to what extent is it entitled to judicial review? Is it suitable for the court to substitute its own judgment for the grade's? This essay points out that the above problems have been in common existence in the national examinations of all kinds, and comes up with the way in which the problems might be solved?The second part is a study of the connotation of the margins of appreciation in examination. First, it is suggested that the margins of appreciation in examination result from the application of the undefined legal terms which are different from the measuring standards. Secondly, the writer argues that the margins of appreciation in examination, which usually exist in problematic examination papers, are the application of the margins of appreciation to the process of scoring testees. Besides, main categories of the margins are defined. Finally the writer points out that the margins of appreciation in examination are of great significance for solving the practical problems in our country, and emphasizes the necessity and urgency to refer to some relative theories.The third part deals with the judicial-control research into the margins of appreciation in examination. It first makes an analysis of the reasonable standard of judicial review, pointing out the necessity of a limited judicial review concerning the margins of appreciation in examination. Then discretionary flaw and its range are posed to give the reasons why the attitude towards the judicial review should be changed correspondingly.The last part is a study of the other controlling methods of the margins of appreciation. The judicial review of the margins of appreciation in examination is used as a post-control, which is far from enough. The writer, from the perspectives of legislation and administrative self-regulating system, makes a study of the other controlling methods of the margins of appreciation, that is, pre-control and mid-control, for the purpose of preventing the abuse of the power of the margins of appreciation in examination, improving the legal system of our national examination, and achieving the final goal of protecting the testees' rights effectively.