Research On Program Control Of Administrative Discretion Under The Concept Of Power Competition

The administrative law focuses entirely on the administrative power. As the economy is moving forward rapidly, the administrative power expands which makes administrative power of discretion characteristics expand to the whole field of the administrative law and administrative discretion become the core of modern administrative power. Just as the Japanese administrative law scholar Dr Tanaka Silurian puts it:"the essence of administrative law lies in discretion." The administrative discretion exists widely, which on the one hand endows the administrative organs with the right of handling transactions flexibly, makes up for the deficiency of the legislation, adapts to the need of efficient administration and is also conducive to the realization of case justice; on the other hand, the abusive phenomenon of administrative discretion becomes more and more serious, which has infringed upon the legitimate rights to people and constitutes a threat to administration according to law. Therefore, how to effectively control the administrative discretion has become a significant topic in the field of the administrative law.Current researches for controlling administrative discretion study the control approach to administrative discretion mostly from legislative, judicial and administrative angles under the perspective of traditional administrative idea. Although these control modes have played a certain role in preventing the abuse of administrative discretion, with the development of history and the great changes of society, politics and economy, the established power-controlling modes under the traditional concept have gradually shown some disadvantages. For this reason, the dissertation tries to explore the power-controlling path with the concept of power competition, introduce the concept of power competition to the process of applying administrative discretion and build up the control mechanism of administrative discretion from the angle of administrative procedure under the guidance of this concept. To restrict the administrative discretion effectively by means of a competitive program power-controlling mode brings a new angle to the control path of administrative discretion. The purpose of this thesis is to improve the administrative efficiency, make the administrative discretion act in good operation and serve the construction of modernization better.This thesis is divided into five parts:the first part is introduction part which describes the research purpose and the significance of the dissertation, Overseas and domestic research situation and the significance of the article. the second part mainly summarize the fundamental points of administrative discretion, which including the conceptual analysis of administrative discretion, the characteristics of administrative discretion and the necessity of having the administrative discretion; the third part covers the control mode of the administrative discretion under the traditional concept and the defects the mode has; the fourth part puts forward the program control mode of administrative discretion in the concept of power competition. It proposes power-controlling mechanism with power competition concept through the idea of reshaping discretion control, namely, administrative procedures, and then it explains the unique value of program power-controlling mechanism with the power competition concept, at last, it presents program orientation of promoting power competition; The last part serves to construct concrete system for exercising and using administrative discretion through administrative procedures, which is mainly achieved from confrontational administrative procedure and independent administrative procedure including information disclosure system, hearing system, reason-giving system, system of functional separation as well as the challenge system.