Study On The Basis Of Administrative Discretion

As a recently emerging phenomenon accepted and widely adopted by the administrative practice, administrative discretion has become one of the key research projects on legislation, enforcement and public administration. Administrative discretion shall be law-based and requires necessary flexibility so as to realize fairness in individual cases. The administration is authorised to render more flexible adjudications with its own administrative experiences. Therefore, it is imperative to establish adminitrative discretion benchmark system to prevent abuses of such discretion.This paper comprehensively illustrates the meaning and properties of administrative discretion and its benchmark and explains the reason of its emergence. Based on the indroduciton on the development of administrative discretion in China and the theoretical disputes, this paper clarifies some controversial concepts and further puts forward some initial ideas about the construction of administrative discretion.In additon to the introduction and epilogue, this paper is divided into four parts.Part one is the summary of related concepts. It elaborates the content, feature and existence form of administrative discretion, the relationship between law-based administration and administrative discretion as well as the legitimacy and negative effects of administrative discretion and further sets forth the meaning, properties and the origin of the administrative discretion benchmark as well as the reason of the benchmark’s emergence.Part two is about the relation between the administrative discretion benchmark and other means of control on adminitrative discretion. By analyzing the function and the principle of administrative discretion benchmark and the controlling mechanism of administrative discretion, it discusses the reform progress of our country’s control over administrative discretion and the relation between the benchmark and other controlling methods.Part three is about the theoretical disputes over administrative discretion benchmark. There are still many doubts about administrative discretion in practice, especially about its validity, effect and limits. By comparing and analysing different scholars’opinions, this part proposes its own point of view and the following reason.Part four is about the construction of our country’s system of administrative discretion benchmark. It mainly discusses some important sub-systems such as policymaiking body, applicable regulations, operating procedures as well as supervision system.