On Quantification Of Administrative Discretion

Administrative behavior in modern society is a process in which not only legislators materialize their intent but also law enforcers make subjective judgment. Where there is a subjective judgment, deviation and arbitrariness is likely to emerge. The answer to how to granting administrative bodies power to make discretion on their own and prevent arbitrary administration at the same time lies in the must-to-be-debated topic of management, control and qualifying discretion in the theoretic research and practice of administration law in our country. The essay is the preliminary attempts on exploring definition, classification, necessity and abusive forms and hazards of quantitative administrative discretion by drawing on results of many theoretical researches on quantitative discretion right and model in this field.Since the issue of "Outline on Promoting Lawful Administrative Practices in All-round Manners" by the State of Council in2004, the management and control of and the establishment and improvement of reference regulation for administration discretion power have become critical elements in regulating administrative discretion, defining rights and responsibilities of administrative discretion in particular. They are necessary steps in implementing responsibilities of administrative discretion. The adoption of managing and controlling administrative discretion power with quantitative reference is the study task in the practice of administration and enforcement in the country.Body, content and procedural validity are the primary compositions of the reference on regulation of administrative discretion power developed by the administrative and legislative branches within the current constitutional institution. Such reference system is not short of drawbacks in practices, mostly presented as limited application, common conflict between check and balance, scare theoretic research and out-of-dated practice of administrative discretion, unbalance between defective law and regulations and reference effectiveness of actual quantitative discretion, inconsistence between procedural regulations and scientific development of quantitative reference, contradiction among various quantitative references and between legislative consistence and possible local protection on quantitative references.To manage and control of administrative discretion, a reference system for administrative discretion power must be institutionalized properly and in depths in a qualifying method. The application of such system shall be based on realities with focus on existing scope of administrative discretion power and quantitative reference system on administrative punition. As for the body for the quantitative reference, higher ranks shall be included to ensure administrative counterparts'involvement and maintain transparency of administrative enforcement. As for the components, rules of quantitative reference, purpose and motives of administrative enforcement shall be organically integrated to preserve the integration of flexibility, scientific base and rationality in administrative enforcement. Effectiveness on administrative bodies and administrative counterparts and judicial review shall be clearly defined by establishing a supervision and review mechanism for administrative discretion reference.The essay consists of five sections.The first part is divided into two sections, the theoretical explanations, the first section of the main concepts is the definition and interpretation. Discretion of the administrative review, on the concept of administrative discretion, classify and target specific elaboration made, respectively, including several concepts of administrative discretion doctrine, and explains the author of the definition of administrative discretion awareness; on Classification of Administrative Discretion administrative discretion from the decision made by the:facts of administrative discretion, finds that the legal circumstances of the administrative discretion, finds that the circumstances of the administrative discretion and the confirmation process of administrative discretion. Quantify the nature of the concept and made a basic explanation, that the quantitative nature:quantitative benchmarks are not regulations, but the principle of administrative law, administrative law norms quantitative benchmark is specific and quantitative benchmark is the fact that the abstract and concrete between laws and regulations important medium. Quantization function is to regulate the process of administrative law enforcement, to improve the transparency of administrative law enforcement, improving administrative efficiency as well as the executive and the courts have to convince the relative effect on the administrative body administrative act by the binding effect of the specific function. Finally the administrative discretion of the existing system of quantitative benchmarks were discussed. The second chapter discusses the discretion of the Chief quantitative benchmarks and problems of legitimacy. Legitimacy of the legitimacy of the performance of the set of the main set and the legality of the content of the legitimacy of the setup process. Specific aspects of the problems I believe that the seven listed issues.The second part of the main comparison administrative discretion under the management and control model. Discussed separately in the United States control of administrative discretion model, the French control of administrative discretion model, the German control of administrative discretion model, the Japanese control of administrative discretion model. And to learn from comparative analysis of extra-territorial control of administrative discretion model superiority, that of the control of administrative discretion the mode can not just use a pattern to the exclusion of one another, but rather complement each other and coordination of administrative discretion quantization for reference.Chang chun City, the third part of the administrative discretion to quantify as an example, analyzed the case of uniform administrative penalty discretion scale, each detailed quantitative criteria and the establishment of the administrative penalty discretion of administrative punishment on the quantitative monitoring mechanism model of administrative discretion useful to explore, that the introduction of administrative law enforcement responsibility of its discretion to regulate the exercise of administrative measures, to explore both the substantive law and procedural law, the administrative discretion and a clear way to quantify the executive-led quantitative model of administrative discretion, to study the advantages and feasibility.The fourth part of the control mode of administrative discretion several theories that were constructed for the system, system control, said that multiple control, process control that so few mainstream theory of the essence, to its dregs, for the Construction of Administrative discretion to provide quantitative theory of control. Cited the establishment of administrative discretion to quantify the principles of administrative law rules should be followed, including the principle of administrative efficiency, administrative procedures for the principles of justice, the principle of administrative legality, administrative rationality principle. Focuses on the control of administrative discretion to quantify the path of criteria, namely, establishing uniform norms of administrative discretion to quantify the main sectors, a clear written form of quantified to determine the quantitative range of administrative penalties into the types identified to quantify administrative discretion the fact that elements of offenses, the determination of aging and to determine the amount of quantitative criteria, the final study in this paper to supplement follow-up questions involved interpretation of the administrative discretion to quantify the main issues, standards, mode choice, and several special issues views and outlook of the amount of administrative discretion to quantify the control of forward-looking.