De And Britain Administrative Discretion And Compared

There are 30000 words in this article. The article mainly includes the introduction and the text.The introduction provides the intention of the article. Discretionary powers of the administration are universal. Their existence or exercise used to be considered inconsistent with the rule of law or the notion of a just society. On the contrary, there is a growing realization that such powers are necessary to achieve a just social order and to make the rule of law a positive reality.The text part is divided into three chapters.The first chapter of the text expounds administrative discretion in German law. Although discretion power is often expressly laid down in German statute, the empowerment can also be indistinct. In several cases, the Federal Constitution Court has established that an unguided discretion given by the legislature to the administrative authorities is not consistent with the basic rights given in the Constitution and should be invalided.The cases of discretion invalidity can be classified as excess of discretion and abuse of discretion. The outer limits of discretion are laid down by constitution, other law and administrative convention. Another form of excess is the failure to exercise discretion, which is distinguished theoretically from the reduction of discretion to zero. The courts adopts several inner objective criterion to control abuse of discretion:violation of the constitutional or other legal principles such as equality, reasonableness, proportionality or value judgements, and improper or unsuitable means。The second chapter elaborates administrative discretion in English law. In UK, the judicial control set upon administrative discretion reflects the competition between judicial control and agency autonomy, which goes to the heart of UK administrative law. This is a constitutional tension which is framed in terms of the separation of powers. There is a clear and obvious sense in which the courts always get the final say. As a basic ground of judicial review, the ultra vires doctrine is based on some constitutional ideas as the sovereignty of Parliament and the rule of law. This doctrine is regarded as the core of UK administrative laws.The development of discretion theory in UK is signaled by a chain of judicial decisions. The leading case is Associated Provincial Picture House Ltd. v. Wednesbury Corporation(1948). In this case, Lord Greene MR described the category of perversity, which is known as'Wednesbury unreasonableness'. In GCHQ case(1985), Lord Diplock expressed the view that the ground of judicial review on administrative action can be classified under three heads: illegality; irrationality and procedural impropriety.These three heads are convenient terms which encapsulate a number of different principles upon which the exercise of discretionary power may be subject to review. The extensive umbrella grounds for examining the reasonableness includes proper purpose, relevant considerations, fiduciary duty, bad faith, legitimate expectations, proportionality etc. Each one of them must be satisfied for the validity of and administrative action. All these principles maybe interconnected and overlap.The third part is the comparison of the two countries'administrative discretion. Historically a vast difference existed between the German and English legal systems. For a number of reasons these systems are now coming closer together.