On The Value Orientation Of Administrative Discretion In The 'Campaign-style' Administrative Law Enforcement

With Chinese characteristics "campaign-style" administrative law enforcement exists in the broader areas of Chinese society, and a variety of "rectification" and "special action" is a "campaign-style" typical of administrative law enforcement.In this paper, divided into three chapters of "campaign-style" administrative discretion in administrative law enforcement to address values.The first chapter outlines the administrative discretionIn this chapter, the author combed the basic theory of administrative discretion. Civil Law, the German administrative law scholars Meyer (FF Mayer) first proposed the concept of administrative discretion. ? Meyer Otto (Otto Mayer) administrative discretion is defined as "the collective interests of the executive authorities (public interest), justice, and so the purpose of self-weighing" and "the executive to decide to dispose of the case." But the definition of administrative discretion in the law and jurisprudence is obviously too broad and vague, that is not explicitly the subject of administrative discretion and did not realize that the nature of administrative discretion. Austria Tetzner scholars (F. Tezner) of "the legal concept of uncertainty", which will be "public interest", "public order" and other vague and difficult to clearly define the concept of executive discretion to remove from the off.After World War II, the German administrative law scholar Hartmut Maurer ? administrative discretion will be defined as "the executive elements of the same facts can choose a different approach, constitute a discretion.", And further detailed sub-region and choice of discretionary decision discretion. Furthermore, Hartmut ? Maurer clear from the perspective of the rule of law that the executive's discretion should be guided by the principle that "the discretion conferred by the legislature."Anglo-American legal systems, the British scholar Dicey the rule of law based on the British tradition of strong opposition from the executive discretion that it is a symbol of dictatorship and totalitarianism. However, Jennings pointed out that the British constitutional scholar, as a matter of fact, administrative discretion is the existence of a wide range.Davis, Administrative Law United States of Jurists (K. C. Davis) said: " 'discretion to make a choice means that the power of'; 'whenever the effective limit of its powers to enable him have the freedom to act or omission of the possible ways to make a choice ', the administrative officials were considered to have discretionary power. Davis (K. C. Davis) made the definition of administrative law in Germany said the meaning is similar to the effect of discretion.In fact, both the common law or civil law, administrative discretion of the study there is a convergence of the development situation, that is basically to gradually limit the administrative discretion of the administrative discretion in the narrow sense. At the same time, pay attention to due process to control the executive power, executive power every effort to avoid the rights and interests of citizens against.Scholars from mainland China so far the study of administrative discretion has not the concept of a unified and clear criteria for the classification of definition, there are some theoretical blind spots.Modern rule of law have accepted the theory of administrative discretion and the rule of law as a necessary means to achieve.Chapter II "campaign-style" administrative law enforcement of administrative discretionThis chapter, the author of "campaign-style" administrative law enforcement in a society defined as serious damage to the public interest, or some kind of social and public interests may be seriously damaged, or to achieve certain social objectives of public administration, administrative organs based on the functions of time and space in the relatively limited resources in a concentrated community of law-enforcement model of a conflict of interest. And that the "campaign-style" administrative law enforcement has the time and space restrictions, education (or deter) function, "above the law" and other features of behavioral tendencies.At the same time, "campaign-style" reason for the existence of administrative law enforcement, that is, the legal parents of the government functions and positioning of the political movements of the preferred mode of governing the country, the executive face "enforcement dilemma" of rational choice.At the same time, in order to "straighten out the country the winds of low Internet special action" analysis of this case the legality of administrative discretion. That due to lack of legal authority as a result of administrative discretion of the Legality of the main deficiencies; legal standard to determine the facts of the ambiguity and uncertainty lead to the uncertainty of discretionary object; technical characteristics of the Internet led to the plight of administrative discretion; violation of the principle of equality and freedom of the reasons for , "campaign-style" lack of legitimacy of administrative law enforcement.Chapter III of the administrative discretion of the value of goal orientationThis chapter, the author analyzes the value of the target as the administrative discretion of the cases of justice and administrative efficiency. The value of the target in terms of the executive discretion to reach it is to human society as a positive role. As a modern rule of law ought to be in the context of a state of the system of administrative discretion should be the value of clear goals.Case of justice, the judiciary is the applicable law in the process and results should be adhered to and reflected the principles of fairness and justice, fair treatment of litigants in accordance with the law to protect their status and rights of action, just not in line with the bias to make social justice the magistrate asked. Cases for a concrete manifestation of justice is fair and impartial. But it must be like to point out that just as real or more real justice is manifested in the case of justice and the modern form of strict compliance with the law the existence of contradictions and conflicts between justice. Form of justice does not necessarily lead to the substance of justice, the form of real justice, only justice, but not fully sufficient and necessary conditions. Case justice should be universal in the social context of justice understandable. Form of justice case that could lead to injustice and even society in general in order to maintain justice, justice will be excluded form the specific case of justice. At the same time, cases of justice also requires equal treatment, that is the same as the same treatment, different treatment of different situations.Efficiency in contemporary society, but also reflect its role as a case of justice or value connotation. Thus the realization of justice cases are bound to require the executive authority to intervene in the efficient allocation of social benefits and to resolve disputes. Otherwise, the pursuit of the rule of law was a good social order is bound to have a great impact. Law, including the value of the pursuit of efficiency: the efficiency of the law itself and the law lead to efficiency. Embodied in administrative discretion or the requirements of efficiency, more the result reflects the efficiency of the law. Procedural justice and the rule of non-personification, and requested the process of handling affairs in accordance with established procedures. Even in the case on the facts are clear and irrefutable evidence, the established legal procedures still need to all come. Procedural justice determines the legitimacy of the outcome, but the procedural requirements and the efficiency of case there is bound to be conflict.Administrative discretion should be the form of justice and maintained by the form of community justice in the context of the pursuit of justice and the realization of real justice as a justice of the case. Administrative efficiency of its enforcement discretion for the Chief of the value of evaluation is also the case of a concrete manifestation of justice. However, the value of hierarchy, its just not the case in general with an independent status of the ultimate value.ters of'campaign-style'law enforcement and administrative discretion to carry out on the value orientation.