On The Internal Control Of Administrative Discretion

In modern society with the rule of law, the administrative power keeps increasing to realize the justice of specific cases and adapt to the need of socioeconomic and cultural development. It is also an important feature of the development of the administrative law. Free discretionary administrative power is an integral part of administrative power. However, free discretionary administrative power is a double-edged blade. As its expansion permeates into every part of social and personal life, the misuse of free discretionary administrative power and subsequent violation of relative persons’ rights now becomes more common in administrative organizations’ management of the society by the administrative law. Therefore, when empowering administrative organizations with free discretionary administrative power, regulations in this respect must also be enhanced. From the domestic and overseas researches, rational control of free discretionary administrative power mainly comes from three perspectives, namely legislative control, judicial control and administrative control. In terms of legislative control, China’s control over legislative body often becomes a mere formality, hence ineffective. Moreover, a great amount of legislative power is given to administrative bodies, which aggravate the abuse of free discretionary administrative power. The independence of judicature in China is relatively weak, and is affected by many factors because of its dependence on administrative power. The regulation of free discretionary administrative power is not satisfactory. However, administrative bodies’ control over free discretionary administrative power (internal control) has an irreplaceable advantage that is completely different from legislative and judicial control. Based on this, the author proposes to have internal control over free discretionary administrative power. Based on the analysis of the basic theory of internal control over free discretionary administrative power, the paper analyzed the advantage of internal control over free discretionary administrative power and the drawbacks of other controlling methods. In addition, the current condition of China’s control over free discretionary administrative power is also discussed. In the end, the author proposes several approaches and suggestions to improve the internal control over free discretionary administrative power.