The Research Of Administrative Rational Juridical Review System

The expansion of administrative discretionary power is an inevitable trend. Administrative organization may restrict its discretionary power through self-discipline, but the administrative crankiness to efficiency can not fully prevent the infringement of civil rights. Under the authority decentralization system, the jurisdictional supervision on administrative discretionary power is an important tool to control the administrative discretionary power. To strengthen the jurisdictional supervision on administrative discretionary power becomes an inevitable trend. Nowadays, the jurisdictional control on administrative discretionary power mainly means rational juridical review on discretionary power all over the world. Basing on the researches of juridical review system in Britain, Germany and Taiwan in China, the thesis presents propositions on constructing a rational juridical review system in our country. It consists of three parts.Part one: administrative discretionary power is the free right of the administrative body within statutory authority when there is little binding force on administrative power. Administrative discretionary power features in easy abuse and the traditional principle of legality is helpless. Countries establish various juridical review systems to prevent the abuse on administrative discretionary power. The first part of the thesis introduces the concept, birth and development of administrative discretionary power states that to impose juridical control on administrative discretionary power is an inevitable requirement to construct a country practicing the rule of law. Here the author introduces the establishment of juridical review systems in Britain, Germany and Taiwan in China, together with the status quo of the principle of rational juridical review in China.Part Two: Along with the generation and expansion of administrative discretionary power, the control on the administrative discretionary power has become an inevitable requirement to construct a country practicing the rule of law. The principle of rational juridical review system was established in western countries as the most delicate and the most rational principle that suits the development of modern administrative law. The rational juridical review systems among countries differ a lot in terms of content and manner due to historical reasons. The author introduces the development of rational juridical review systems in Britain, Germany and Taiwan in China. The theories and practical experiences in these countries and regions provide important guidance for the establishing a rational juridical review system in China. The present juridical review system used in administrative proceeding in China follows that validity is the principle and rationality is an exception, which is definitely not adaptive to the polical and economic development. So it is quite necessary to establish rational juridical review system in China to control administrative discretionary power.Part Three: according to the rational juridical review systems in countries among the world, the establishment of the rational juridical review system means beyond the perfection of law and a series of relevant system assurances. Recontruction of the system is a necessity to accomplish a good function of the rational juridical review system, especially under the present juridical processing system in our country. Learning from the practical experiences of western countries, the thesis presents some propositions on how to establish the rational juridical review system in our country: first is to revise Administrative Processing Law and other relevant laws and regulations and to establish the rational juridical review principle in lawmaking. Second is to set administrative court to assure a juridical separation to accomplish the effective function of the rational juridical review system; third is to set conviction case institution to guide the juridical practice of the rational juridical review system for the stability of right valuation of rational juridical review system; forth is to set the standard and mode of rational juridical review system basing on the proportional principle in the practice of juridical review, in order that the rational juridical review system could be used in the practice of juridical review.