Judicial Restraint Of Administrative Discretion

The nucleus of Administrative Law Review is in Judicial Power and Administrative Power. As the vital part of Administrative Power, Administrative Discretion is a tough issue in administration according to law. Its constant expansion is the common trend of contemporary Public Administration, and the Discretion is also the power prone to be easily abused. In order to protect Citizens' right from being hurt by the unwilled result of Administrative Discretion, various measures- and approaches are being sought to restrain Administrative Discretion in countries of the world. As to Administrative Law, the vast existence of Administrative Discretion is an undisputed fact, and mainly through the activities of which Administration Enforcement is carried out. The contemporary society requires the administrative authorities to practice the administrative discretion actively so as to improve social services. Consequently, an in-depth reflection over the current Judicial Review System is with great significance to better exercise the positive function of administrative discretion and to realize the goal to perform Administrative Discretion System in the contemporary Administration Law.Administrative Discretion is a hot subject in the field of Administration Law. Being a critical constituent part of Administrative Power, Administrative Discretion is also the part that is most distinctive, most special and most active. The core of Administration Law is Discretion. On one side, Administrative Discretion Power is the most common part for Administrative Powers of each contemporary government; and on the other side, it is also the power inclined to be abused. Modern democratic countries have always been devoted to setting boundaries and principles to restrain Administration Power, establishing serials of governing rules for Administrative Discretion in Administration Law, which demands that Administration Power's existence and exercise be subject to necessary governance including the Legislative Governance, Administrative Governance, Judicial Governance, and Social Governance etc.Administrative Discretion is a type of discretionary power for administrative authorities, its characteristics are unique in terms of the Power source, feature, effectiveness and option within the legal extent. The existence of Administration Discretion has both positive function and negative influence, the way out is to control reasonably the Administrative Discretion. On one hand, it functions in improving administrative efficiency, and on the other hand, it has negative influences including the inclination of being abused. Therefore, the conjunction of power authorization and control is thought to be natural in contemporary countries ruled by law. From the law-ruling point of view, the control over administrative discretion imposed by each country's government is in forms of Legislative Control, Administrative Control and Law Control. Among these, Law Control is considered to be one of the most powerful modes. The Administrative Discretion itself is not more than an Action Mode or Action Approach or Action Form acknowledged by the principles of law-ruling administration, and it is different from restriction only at the constraint degree limited by law. Basing on different standards, administrative actions may be divided into many varieties. Among these, as per the different degrees of legal norms constraint on Administrative Actions, Administrative Actions may be classified into Restrictive Actions and Discretionary Actions; and as per the different degrees of legal norms constraint on Discretionary Actions, the Discretionary Actions may be divided into Restrictive Discretion and Free Discretion; and whatsmore, under legal norms, according to the different stages of Discretion acknowledged by the Administrative Power, the administrative discretion may be divided into Essential Condition Discretion and Effect Discretion.Practicing Administrative Discretion in an appropriate and rational way, has caught the attention from many Administration Law scholars of the world in recent years. Through the analyses over the legal constraints of Administrative Discretion and over the negative effect arose therefrom, the study aims to suggest approaches for effective control in Administrative Discretion, which may help achieving consummation in practicing the Administrative Discretion.