On The Nature Of Administrative Discretion And Its Components

The ideal of administrative discretion (AD) is to utilize its flexibility and avoid its arbitration .For this purpose, what we must do first would be to obtain the knowledge of AD per se, that is to say, the character and constitution of AD, which is the source of strength to control effectively.PrefacePart One The Character of ADAD has always been regarded as 'free discretion' that causes various negative results to Chinese administrative law and practices. This situation should not continue any longer. This paper deals with in detail the historical understanding of the nature of AD: absolutely free discretion in Police State, no discretion in formalistic 'rule of law' State, freer discretion in Welfare State, and obligatory discretion under the new public managerialism. In accordance with the discretionary condition in planned economy and social transformation, we ought to recognize the nature of discretion on the obligatory basis. The obligatory discretion involves discretion under administrative objectives and discretion under principles. The relationship between the character and the constitution of administrative discretion is also discussed here.Part　Two　The Constitution of ADThe Constitution of AD deals with the external boundary and internal structure of the discretion. The external boundary concerns the relations between legislation and administration, which determines the explicity of conferring powers. The internal structure includes subjective elements of AD, legal elements of AD, legal effects of AD as well as procedure of AD.The subjective elements of AD refer to ends, intents and bias of AD etc. Legal elements focus on whether to recognize the discretionary nature of legal elements which gives rise to the theory on indefinite terms and deciding room of administration. Legal effects of AD are related to decisive discretion----whether or not to render decision, and selection discretion----what decision to be made.Procedural discretion mainly involves the giving of reasons and formal rationality.Part Three ConclusionUnder the perception of obligatory discretion, more and more elements can be discretionary. In other words, AD is expanding. But arbitration disappears and essential justice draws near. This is the interdependence and interaction between the nature and constitution of AD.