Research On Judicial Control Of Administrative Discretional Power

Administrative discretion is necessary for the executive authorities. However, we should prevent the abuse of administrative discretion. Executive power is closely related to citizens living, with development of living, the expansion of the executive is the inevitable trends. The law endow with the wide discretion power for executive. If not, Administrative Counterpart's Right should be damaged. The county around the world design of different rights by own national conditions. Judicial remedies belong to the post relief model. its play an important role, owing to Authority, Compulsory. However, how about to control the executive power, not only involves legal issues but also related to design the authority of the state. Statute law created the principle of proportionality. Common law created administrative Rational Principle. Administrative litigation be late in China, it not suitable for the development was enacted 20 years. Intense especially in administrative discretion. Administrative dispute be caused by abusing. How to control the administrative discretion becomes the hotspot to the masses.The first part: general theory of administrative discretion interpretation. The concept of administrative discretion in theoretical. its comprehend the free concept Bone of contention. I believe that the definition of Professor Ye Bifeng better reflect the essential characteristics of administrative discretion, Its principles, including common-law principle of rationality, the civil law principle of proportionality. Both are on the basis of legitimacy. The scope of judicial review not include the rationality except for the Legitimacy. Review of administrative discretion is necessary, is a reflection of the constitutional system, the ultimate aim is to ensure that the rights of citizens against arbitrary of executive power.The second part: A comparative study be used, Expand discussion about administrative discretion form the civil law and common law countries, the civil law be represented by the France and Germany. Establishment of Administrative Court of administrative discretion in its judicial system. The common law be represented by the UK and the USA, case law system is its own characteristics. Shrinking the gap between the different legal systems.The third part: China's administrative discretion in the issue of judicial control system, and expressed doubts that relevant issues and put forward my opinion. The abuse of administrative discretion can not be attributed to the law contains enlargement space for discretion, which is the legislative technology inevitable choice. Administrative discretion space be refined, its restrain the discretion to non-discretionary power impossible, not refined form abuse character to solve problems. The court determines the nature of the business is to conduct its own review of the legality. Rationality of the review is a question of fact for the majority of the review, not a court's expertise. Preventing a discretionary (judges discretion) to replace the other discretionary (administrative discretion), its means that a discretionary oversight into question. so the court must be reviewed for legitimacy. Other procedural law are modifications, the Administrative Procedure Law has experienced 20 years, relative to the administration of relief efforts in protecting people's actions is not enough, the most prominent is the administrative discretion of the judicial review standards of vague, it's difficult to operate about the judge. Abuse of authority, obvious unfairness. Subjective judgments of these factors with the legal terminology, legal and judicial interpretation did not provide an explanation. The administrative department chase the interests, judicial review intervene the areas the hardest. Judicial independence is not strong, judicial localization is an important reason for outstanding performance. Administrative subject caused the Administrative Discretion more difficult, whether the administrative proceedings successfulness depends on the attitude of the executive heads. the idea that the men do not struggle with the officer usually reluctant to sue, even has sought to withdraw an accusation . Many of these problems had led to administrative discretion difficulties in china.The fourth part: This is the most critical part of how to improve China's administrative discretion system of judicial control. Analysis of foreign judicial control of administrative discretion model, and the actual situation in our country, suggesting judicial control on the urgent to complete at stage. First of all, strengthen and interpretation of the legislative is a prerequisite for judicial control. The Administrative Procedure Law in China has been in development since 20 years of development since 1989, during which the rule of law environment for the development in Chinese society has undergone many major changes, Criminal Procedure Law and the Civil Procedure have been amended, however, the Administrative Procedure Law not been revised, this is a pity. With the constant improvement of China's economic system, the executive management of range will be constantly increasing, public power and private rights will be increasing conflict, the lag of law obviously. From the foreign judicial control of administrative discretion experience, our standard lag of administrative litigation, especially nonstandardness government documents be excluded in the review area and is not conducive to fundamentally control the abuse. The introduction about principle of proportionality can improve the field of administrative proceedings vague concept. The establishment of judicial mediation should benefits to the trial. Second, improving the administrative procedures. Third, the judicial interpretation and the supreme court bulletin remedy the essence of case law, and improve the communication system of judges and improve the judge's trial level. Fourth, judicial remedies to ensure damage retrieval in max.