Research On Structuring The Legal Administrative Discretion Standard

With the national legal system advancement, especially the State Department has been released"The Program for Comprehensively Implementing Government Administration in Accordance with the Law", there have been a large number of administrative discretion. The phenomenon means that all levels of administrative organs make great efforts administrative according to the law. But it can not be ignored that the enforcement on the discretionary standard still has some problems. The important performance of expansion of the executive power is administrative organ has a huge administrative discretion, but administrative discretion must be monitored and controlled according to the rule of law and administrative requirements. In our country, because there are a large number of discretion standard, and the unified "Administrative Procedure Act" has not issued, the theoretical basis, such as, the concept of administrative discretion, nature, the basic theory and function have not adequately studied. Many scholars have tentatively put forward on their own unique thinking on this issue; a lot of views have a reference value. Therefore, in order to regulate the application of discretion standard, and play the ultimate goal of the legislation, it must be build the system of administrative discretion from the legal perspective.This article is divided into four parts; the first part is to clarify the administrative discretion and how to control, including the legitimacy of the existence of administrative discretion and legal regulation. The second part is to describe the basic theory of administrative discretionary, involving the concept, nature and function. The third part is to analyze the current state of the standards for administrative discretion in China, which prove from the discretion standard of the administrative licensing and administrative penalties. The fourth part is to present the ideas how to build the administrative discretion in our country.