On The Standard For Judicial Review Of Adinistrative Discretion

Judicial review of administrative discretion, essentially contains the game between judicial power and executive power. Administrative discretion right is the essence of administrative power. That is like a double-edged sword, if used properly, it can realize justice on cases, adapted to modern social development and efficient administration needs; Conversely, administrative discretion right would lose control and be abused, infringing upon the lawful rights and interests of the administrative counterparts. And judicial review right is the core of modern judicial right. Under the decentralization of constitutional system, it can restrict the abuse of administrative discretion rights to certain extent, also should refrain itself from interfering lawful operation of administrative power. Therefore, judicial review need a tailored ruler to regulate its application scope and make sure itself on the reasonable and proper position, namely, to determine the judicial review norm of administrative discretion. As the control valve between administrative and judicial power, judicial review norm take an irreplaceable and important place, directly related to the fairness, authority and legitimacy of judicial review of administrative discretion.Since it began reform and opening up 30 years ago, our administrative law has made great achievements, but remained on the stage of continuously revising and perfecting administrative procedure. The complement of judicial review norm will be absorbing. According to the operation situation of present norm in judicial practice, this article will analyze the causes deeply, and find the plight of current judicial review of administrative discretion in China, to find a way to perfect our country's judicial review of administrative discretion, reference on many scholars'previous research in this field and foreign system and experience.This paper falls into five parts to research the judicial review norm of administrative discretion: The first part starts from the analysis of control paths for administrative discretion and their advantages and disadvantages respectively to determine the necessity of judicial review of administrative discretion and the importance of perfecting review norm. This paper explores the research background of judicial review norm of administrative discretion and clears its research significance.The second part analyses the connotation and extension of administrative discretion and its mode of existence from the perspective of definition and classification, clears the scope and strength of norm for judicial review through the definition of administrative discretion, further defines the judicial review norm of administrative discretion, and introduces legitimate foundation to confirm the judicial review norm of administrative discretion in depth.The third part introduces the operation status in judicial review norm of administrative discretion in China and the plight of abuse of power and losing justice standards and analyses the root and direct cause, through real cases and the classification of relevant materials.The fourth part briefly introduces several systems of judicial review norm of administrative discretion of representative countries in the continental law and common law and states what we can learn in the perspective of relative factors, such as review intensity, ways and principle, after comparative analysis.The fifth part bases on application of legal conceptions thoroughly, corrects understanding of formalistic legality, handle the weights of judicial power and administrative power correctly. To rebuild the judicial review norm of administrative discretion, macroscopically, it should base on legitimacy principle, involving proportion principle, equality principle and trust protection principle; microscopically, should clear specific review norms such as objective not appropriate, not related to consider, infringe fundamental rights, conspicuously justice, violated the legal procedure by law, establishing multidimensional system of judicial review norm of administrative discretion.