On The Judicial Review Of The Administrative Discretion

Administrative discretion is the core of modern administrative law. With the rapid development of the modern society, the administrative organs need the power which can solve the problems timely and rapidly, but the laws are stable, they can't be changed easily. Complex conflicts require the intervention of administrative discretion. Of course, the administrative discretion power plays an active role in the social management. It will help to improve administrative efficiency, protect the personal interest, and maintain social justice. However, the administrative discretion also has its own shortcomings. It is easy to use illegally, and it can be against the public interest or individual rights. Therefore, the specification and control of administrative discretion is necessary. In all of the modes, the judicial review is considered the most fair and effective.At present, various countries strengthen the research of the administration discretion, and at the same time, they are in search of the control modes continuously. The judicial review is the best way to determine the legality of administrative decisions. In the administrative proceedings, the judiciary resides independent and neutral position, and it can make a fair judge with the help of utilizing the a strict legal logic reasoning, and being combined with the reality of the case. The court decisions have the high authority, so their judgments can be accepted by the administrative organ and the citizens.Now, on the administrative discretion of the judicial review, the modern western countries formed a comprehensive theoretical framework and practical operating system. Such as the UK-US legal system's principle of rationality review and the theory of following the precedent review, as well as the civil law system's principle of proportionality and the uncertain legal concepts. Many countries have established a strict review mechanism to supervise the power. But in our country, the judicial review is still faced with the misery aspect, for example, the theory is insufficient, the provisions of the law practice are fuzzy etc, the situation need to improve. This paper is on the study of the judicial review of the administrative discretion, This paper studies the problem is mainly through the following steps. Firstly, the paper analyzes the basic theory of the administrative discretion and the judicial review, and clarifies their concepts, purposes and meanings. Secondly, by choosing some typical countries as the samples(such as the United Kingdom, the United States, Australia, Germany, France),the paper analyses the basic theories of the two legal systems, and reorganizes the elementary theory and the practice pattern of the judicial review of administrative discretion. Thirdly, the paper explores our country's present situation in the judicial review of administrative discretion, analyzes the shortcomings of our system., and puts forward several proposals to build our country's system.