Judicial Discretion Is A Reasonable Operation

In traditional administration in modern times, administrative discretion had been restricted rigidly. At that time, people believed that: "the government which manages lest is the best". In legal system, they adopted "mechanical constitutionalism" that demanded any act of the government be authorized by law clearly. However, with the rapid increase in social affairs and increasing complication of social relations, the function of government has been strengthened rapidly, so legislator has to authorize administrative organization some even as extensive as possible discretion under the pressure of objective need. In order to avoid the abuses of executive power in the application of discretion, judicial power must be applied, administrative discretion must be examined by judicial organization, thus a problem arises: how does the court examine administrative discretion?Because behavior of judicial discretion does not have legal basis, so when it enters the course of the administrative litigation, the judge can not find the precise legal rule to examine it too. As an important way by which discretion judicial power can supervise the executive power , though judicial discretion is an important factor of the modern constitution system , it can be abused too, so it must be supervised and controlled, otherwise it will move towards another extreme: causing the judicial power to be tyrannical and willful. Then how to make the abuse of judicial discretion to reduce to the minimum limit?It draws a brand-new subject :The rational operation of the judicial discretion.The objective necessity of the judicial discretion makes it doom to be an important problem in judicial reform . whether we would like to admit , it exists objectively in the judicialpractice . it's two-sided function determines that on one hand people have to take precautious against it's abuse, on another hand people can not to avoid the reliance on it. So for realizing rational operation of judicial discretion , we should limit it to implement improperly , and also ensure its normal running. And judicial discretion in administrative litigation concerns administration of justice while contacting administrative behavior, it is an important tie of binding administrative discretion and person administrative litigation. The reasonable operation of judicial discretion has an great and realistic value for the general plan of running the country according to law and administering the state according to law.Regarding the content, this thesis is divided into four parts altogether, it is inclusive to include explanatory note and catalogue, more than about 45,000 words of full text.First, the judicial discretion is explained;Second, judicial discretion in the administrative litigation;Third, the theorical analysis to the reasonable operation of judicial discretion in the administrative litigation;Fourth, some suggestions for perfecting the operation of judicial discretion in administrative litigation.This is the key part of this thesis .Here, this text has pointed out several questions in the actual operation of judicial discretion in our country and then set out some suggestions for perfecting the operation of judicial in administrative litigation for giving some beneficial help to the legal practice of our country.