Studies On The Judicial Review Of The Administrative Discretion

Administrative discretion is the core of the modern government management, which penetrate in every aspect of administration power exertion. In ruled-by man society, dictatorship equals to law and the discretionary in modern ruling-by-law age do not belong to administrative management. However, when we enter into the society ran by law, people have acknowledged that discretion space exist in all the exertion of administrative actions. This is of great importance for the improvement of administrative power exertion and the safeguard of social order, therefore as a law issue, administrative discretion is being discussed and studied by all society.In modern society, global market makes huge influence on a nation’s economical and social life in a unexpected and unstopped way, therefore higher demands have appeared on administrative practice that administrative organs must adjust measures to local conditions and handle complicated administrative affairs in this way, This means administrative organs should be equipped with strategic vision, abundant information and cognizance pretty extensive administrative discretion.This concludes Administration controlled by law and resolution uncertainty by wittiness, and the pulling force between standard certainty and fact cognition and the overall arrangement behavioral paradox, The exist of his kind of paradox makes it easier to abuse administrative discretion.I conform that effective and forceful means should adopt to control administrative discretion to prevent the abuse of the power, and this is also the common-held opinion of most scholars. Controlling means include Legislative control and administrative organs self-control and judicial control, and the three ways compose the preventing and controlling system of preventing the abuse of administrative discretion. However each nation’s practice and experience indicate that judicial control with judicial review system as the core is more fair, just and effective, Strict open law democracy and the judicial authority of society ran-by-law make judicial control become the most important means to prevent the abuse of administrative discretion. This essay is divided in5parts in structure.The first part outlined the administrative discretion. From the concept of administrative discretion. It recalled the history of the emerge and improvement and analyzed the features of the administrative discretion. In the end it summarized the representing patterns of the drawbacks of administrative discretion and served as the theoretical support for the second part.The second part concentrates on the judicial review system. Through comparison and demonstrating the constriction system---legislative constraints, self-discipline, administrative organs and the judicial review, the second part concluded the merits of judicial review system and clarified the necessity of administrative discretion judicial review.The third part mainly depended on the comparison research method and summarized the administrative discretion judicial review system of the Anglo-American law system on behalf of the state of the United Kingdom, the United States, one of the representative countries of civil law of Germany, France. Starting from the developing history of the administrative discretion and judicial review system in these countries and the study of the judicial review principles and standards in details, we can confirm that judicial review system of the administrative discretion have matured in these countries and we can learn abundant experience from them.Firstly based on the current practice of legislation, law enforcement, and the judicial practice in our country, the fourth part stated the feasibility of the judicial review system of the administrative discretion. Secondly it analyzed the status quo of the administrative discretion legislation rules and practice and conclude that currently there still exist many shortages and drawbacks of the judicial review system of the administrative discretion, not only present in the concrete operational level, such as the ambiguity of judicial review standard, the lack of legislation of the judicial review principles but many root causes problems exist in it.The fifth part put forward the suggestions of solving the operation problems of the judicial review of the administrative discretion, including (?)ing judicial review principles and widening the judicial review range. It also gave some constructive advice on the solution method on these root problems.