The Research On Administrative Discretion Under The Perspective Of Social Fairness

Social fairness, from the point of establishing harmony society, refers to social political profits, economic profits and other profits be divided among social members reasonably and equally, it means that the equality of rights, the reasonableness of allotment, the equalization of opportunity and the justice of the law. Politically, social fairness means that the government party protecting the basic rights of people and social pluralism, and preventing splitting. Sociologically, social fairness demands the government party adjusting the relationships between different social groups and narrowing the income gap between the rich and poor. The basic principles of fairness and justice include: 1) everyone can equally enjoy the rights and freedom which are analogous to the basic freedom system as others, namely, the principle of equity and freedom; 2) the principle of opportunity's fairness and difference.Administrative discretion means that the main administrative body has the right to opt whether act or omit and the way of acting or omission within the boundaries of law. Administrative discretion has its own reason and social foundation for existing. On one hand, realizing of social fairness and justice is the desired goal of both administrative execution and administrative discretion; on the other hand, social unfairness provides room for administrative discretion. Administrative discretion is essential to realize social fairness, and needs more control in a fair society. But for some reason, such as administrative discretion is easily abused, the departmentalization of national profit and the legalization of departmental profit in legislative aspect, the weakness in controlling and the weakening of administrative justice remedy, the weakness of legal system construction in administrative process, the relatively low makings of administrative executors, there are many events concerning appeals to higher authorities for help and troubles caused by the abuse of administrative discretion. The administrative discretion compromise normally represents that: 1) the consideration of irrelevant factors; 2) the inconsideration of relevant factor; 3) inconstancy; 4) the administrative punishment is obviously unfair; 5) random extending or condensing the explanation of flexible law phrases; 6) the behaviors of improper delay.In order to ensure the social fairness, administrative discretion must be regulated. The ways of regulation include: 1) introducing the principle of social fairness into the legislation of regulating administrative discretion; 2) steering the using of administrative discretion with the principle of social fairness; 3) improving the system of administrative program to show the importance of administrative discretion; 4) regulating the administrative discretion by the means of judicature to ensure social fairness; 5) the consummation of relevant judicature supervision and remedy system should focus on the maintenanc of social fairness; 6) consummating the social allotment to provide a fine social groundwork for impartial execution.