The Analysis Of Controlling Ways Of Administrative Discretion In Our Country

The administrative discretion is necessary for the modern administration, because it makes the executive authorities to deal with administrative affairs flexibly and they can take a different approach according to different objects. However, the administrative discretion, like other powers, is a double-edged sword owing to possibility of abusing. And once it is abused, its harm is greater. Therefore, various countries in the world are studying how to control the administrative discretion. The goal is to guarantee the normal exercise of the power and to protect the public interest and legitimate rights and interests of citizens. Our research is also for this purpose. As we know, the executive authorities have extensive unrestricted administrative discretion. Although these powers make an outstanding contribution, they are also abused seriously. To obstacle the spread of this state need our special attention. Our attention should pay to the three paths of controlling the administrative discretion, that is, administrative control, the negative external control and the positive external control.The framework of the article can be roughly divided into the following parts:The first part describes the basic theory of the administrative discretion. First, we define the concept of administrative discretion and show that we must prevent the generalization of the concept. Second, in order to accurately grasp the scope and composition of the administrative discretion, we have a study on the classification of the power. Third, we analyze why the administrative discretion produced, and the reasons show the necessity of the existence of the power and the necessity of our study.The second part is the theory of the administrative discretion of the Western countries. Through the study, we can find the lack of the theoretical research of our country and use for reference. The representatives of the common law legal system are US and Britain. In the US, with the reconstruction of traditional model of administrative law, the question of the administrative discretion re-emerged. The jurists proposed a model of interests-representing to control the administrative discretion. In judicial review, it performs the expansion of eligibility to sue and the due consideration to all affected benefits. In Britain, the judicial control to the administrative discretion mainly manifests in the reasons of judicial review. One of them is the principle of Wednesbury irrationality with the far-reaching impact. The representatives of the civil law system are Germany and France. Germany separates the uncertain legal concept from the administrative discretion and develops the theory of space of judge. The judicial review of the administrative discretion in Germany can be divided into the transgressive administrative discretion, the neglectful administrative discretion, the abusive administrative discretion, and so on. The principle of proportionality with objectivity and good control effects is affecting other countries in Europe by the adoption of the EU. France develops the standard of abuse of power and it pays attention to the purpose of the administrative discretion. But it is being substituted by the objective standard of illegal examination.The third part is the status quo of the administrative discretion in our country. Though the administrative discretion in our country is playing an important role, it often can be seen that the administrative discretion is overstepped and abused. We concern in the abuse of the administrative discretion. First we show the performances of the abuse of the administrative discretion, such as the violation of the legal purposes, the irrelevant consideration, the obvious violation of justness and the neglectful administrative discretion. The obvious violation of justness contains the question of unequal treatment in law enforcement by administrative authorities in our country. Second, we analyze the reason of the abuse of the administrative discretion. We find that the nature of the administrative discretion, the legislative defects, and the anomy of administrative ethics are the main reasons.The fourth part is one of the controlling ways of the administrative discretion in our country-administrative control. The administrative control is the most effective method to solve the abuse of the administrative discretion. The administrative control includes the following: the establishment of the administrative discretion norm, the control from the administrative procedure, the following of the administrative precedent and the construction of the administrative ethics, and so on. Establishment of the administrative discretion norm is the mean of controlling the administrative discretion which our country is vigorously carrying out. Because the research about the administrative discretion norm is inadequate, so we make a discussion in depth, such as the concept and role of the administrative discretion norm, the regulation about the administrative discretion norm of "administrative procedure law" in Japan and the institution of the administrative discretion norm in our country. In the administrative procedure, we mainly pay close attention to the reason explanation system and the administrative hearing system. In the following of the administrative precedent, we provide some proposes, which isn't to disturb the power of the administrative authorities. The construction of the administrative ethics concerns in the administrative responsibility ethics, ensuring the formation of responsibility for the people.The fifth part is the second control path of the administrative discretion- negative external control. The negative external control includes legislative control and judicial review. The legislative control is necessary but it should not inappropriately constrain the administrative discretion. We emphasize the scope of the protection of right in judicial review, judicial review standards and results of the abusing. The reconstruction of judicial review standards of the abusing refers to foreign experience.The sixth part is that the third control path of the administrative discretion refers to positive external control. The positive external control includes public participation and media surveillance. The public participation in recent years is our concern and it can effectively control the administrative discretion. While describing the function of the public participation, we pay attention to the limitation of the mechanism for public participation and propose some rational suggestions, such as the improvement of laws and regulations in the public participation and the establishment of response mechanism of the public participation. The media surveillance is also an effective positive control path. While analyzing the function of the media surveillance, we describe the existing problem and propose some suggestions.The research method of the paper includes the comparison, the case analysis, and so on. Through referring to the foreign theory about the administrative discretion, we find our deficiency. Through analyzing the control way of the administrative discretion, we wholly propose the administrative control, the negative external control and the positive external control. When analyzing the status in quo of the administrative discretion in our country, we adopt the case analysis to provide more intuitionistic comments. In addition, we start study from the concept and propose three control paths of the administrative discretion. We hope that these paths can play their proper roles.