On The Control Of Administrative Discretion In The Administrative Reconsideration

Since the 20th century, the expansion of administrative power has become a trend in the whole word. People notice the applicable value of the administrative discretionary power and actively seek reasonable ways to limit it. This dissertation, based on the analysis on the relationship between administrative law and the evolvement of public administration, analyzes administrative law in the background of the historical development and try to get an overall review of administrative discretionary power. The author holds the viewpoint that because of the limitation of statute and deficiencies of legal language, the contradiction of the prevailing justice and little injustice make it necessary for the existence of administrative discretionary power. But its existence may harm the legal merits of the counterparts of the administrative management and should be properly controlled. This dissertation compares the characteristics of the reasonableness review in administrative litigation and administrative review and holds the view that administrative can directly change the unreasonable acts of administration while the administrative litigation can only make limited changes to acts of administration. The judicial characteristic of administrative review makes it more suitable for reviewing the reasonableness of acts of administration. But the deficiencies of the present administrative system make the value of the system been not fully demonstrated, especially representing in that the reviewing in the reasonableness is not enough and the rate of being changed is very low. The common people all think that the system of administrative review is "father beating son", and this system lacks public belief. In this respect, we need to strengthen its judicial nature and make it more judicial and neutral. And the personnel in charge of administrative review should be elevated in quality. The standard of reasonableness and stare decisis doctrine should be set up in the possible earlier time. The procedure of administrative reviewing, especially the hearing process, should be improved and perfected. The power of altering should be effectively made use of and a new category of "unreasonableness affirming" should be added to it. The link of between administrative review and administrative litigation should be improved empowering the organization of administrative review the last deciding power in reviewing the reasonableness of administrative decision.