Sino-german Administrative Discretion Comparison And Analysis Of The Control Path

Administration according to laws is one of the basic principles governing the administrative law. Public authorities behave themselves upon the law and are restrained by the law. This is one of the basic concept of a constitutional state and also the foundation stone of the administrative law. But with the rapid development of the modern administrative methods, the freedom of authorities, which is represented especially by the administrative discretion, is gradually going beyond this strict control. Nowadays administrative discretion not only permeates each step of the administration process, but also maintains close connection with the individual life of people.The importantest consideration for legality of adminstrative discretion is not olny the executive efficiency to persude, but also the justice for each single case to achieve. The adminstrative authorities are allowed by the law in some specific situation to make their own judement. Wide existence of administrative discretion is becoming an inevitable fact in modern society. However, this does not mean the total trust from the law. On contrary, the rule of law is on guard and hostile to administrative discretion from beginning to end, as unrestrained freedom can probably lead to the arbitrariness. Therefore, another essential topic comes out: Does such kind of discretion has become a challenge or even a provocation to the concept of constitutional state? How can modern legal system effectively respond to such kind of facts? What's more, how can the law refrain the administrative discretion in a rational way?In Germany, administrative discretion means that administrative authorities, with the authorization of the law, can decide whether corresponding legal effect can be produced or choose which kind of legal effect to be produced, when constitutive requirements according to the legal rules are achieved. Obviously, in Germany, the control of administrative discretion is severest and most complicated. The German law does not acknowledge that administrative authorities have discretion when interpreting and applying the law.This paper will mainly discuss the different understandings of discretion from the legal view between China and Germany. The research process involves on one hand the search and accumulation of the literature, on the other hand sorting and screening related documents, besides the systematic understanding on the corresponding academic theories in and abroad.