On The Administrative Supervision Of Administrative Discretionary Power Of Our Country

Administrative discretionary power is the core of modern administrative law. Scholars of home and abroad have different definitions. Chinese scholars generally thought that Administrative discretionary power is the power of choose. The administrative subject pursues the best bonding point of law and fact within the principles and scopes of the administrative laws and regulations based on the objective circumstances and makes subjective reasonable judgment and flexible choice according to this.Its mainly performances are the discretionary of applicable condition of law, the discretionary about the Choice of the types and mode of administrative behavior, the discretionary about procedure chosen and the discretionary about behavior time limit.The existence of Administrative discretionary power is inevitable because of the expansion of executive power, the broadness and professional of Administrative management, the actual conditions of our country and the hysteretic nature of law. But its exercise also must be some restrictions including Physical aspects,for example the basic principle of administrative law, Administrative purpose and the purpose of legislation, Public interest, following the precedent, legal personal property shall be inviolable and fair allocation of public resources,it also have procedure aspects as transparent handling and establish standard program operation norm.The theoretical basics of the administrative supervision for administrative discretionary power are the principle of separation of powers and constraints, the rule of law and administration according to law requirements and human rights principles. In reality there are a lot of administrative discretion to abuse and undeserved exercise phenomenon, so it must be judicial supervised.Now the judicial supervised of administrative discretionary power have some problems such as that the scope is very narrow, the intensity of the question of law and fact isn't distinguished, the standards of procedure is narrow and other standards severely lack. So we must strengthen the construction of the system of judicial review with Chinese characteristics. First enrich its system basis, for example create the condition on the legislation, set up administrative court, and establish the system of administrative judicial precedent and judicial review jury. Then gradually expand the scope of judicial review consist of the specific administrative action and the abstract administrative action. Reconstruct the distinguish system of facts and legal issue of judicial review. Finally construct the standard of our country, purpose appropriateness and related considering subjective criteria, the principle of equality and proportion principle objective standard, and the principle of due process program standards.