On The Selection And Construction Of The Regulation Model Of Administrative Discreation In China

Accompanied by the continuous expansion of executive power in the modern society,administrative discretion as a typical characteristic of public administration has become oneof the core content of administrative law, causing widespread recognition and in-depthresearch around the world. As an important way to achieve justice, theoretical research andpractice of administrative discretion in China is not good.Reasonable scientific definition is the premise of the study, the concept ofadministrative discretion do not form a consensus in China. To select a scientific andreasonable regulation model, we should firstly find the reason of abuse of administrativediscretion.The imperfect legislation, low quality of law enforcement officers, and the lack ofjudicial review and procedural sense are all the reasons, the lack of the concept andimplementation of administrative procedures should be the most important reason.At present in China, the lack of a nationwide system of administrative discretionregulation legal text is obvious, Hunan, Liaoning and Ningxia have formulated thegovernment rules of the regulation of administrative discretion, walk in the forefront of thecountry. On the current legal documents, China’s administrative discretion regulation modelmainly can be summarized as entity legislative regulation, judicial regulation andadministrative procedure regulation, in the reality diverse mode is actually the differentcombination and change of the three models.Because of the limitation of the ultimately legal system and prediction,the traditionalentity legislative regulation has come to self-denial; In the present,discretion benchmark isa hot spot in the study of theory and practice, has become the most important regulationmodel of trend, however, we should be in the rational thinking, the defects of the judicialcohesion and the effectiveness of their internal control technology is difficult to make up;Judicial regulation is the last defense of justice,has the necessity of existence. however,in theregulation of administrative discretion, it is unable to do as much as we would like to. Thelack of administrative procedure regulation in China is very serious,yet it is the mostimportant model,it has lots of adervangtages in communication. We should set up a programin which dministrative procedure regulation acts as the core, the entity regulation and judicialregulation act as the auxiliary. Through the foundation of Information openness system,statement defend system, reasons system and hearing system, strengthen the substantive execution n the reality, step by step, to achieve the ultimate goal of procedure regulation. Inthe legal procedure, other normative documents are on the shelf position, but in reality theydo have significant influence, accommodating the procedural provisions of other regulatorydocuments into the category of legal procedure has important meaning.Of course, the administrative procedure regulation also faces the problem that theselection of procedure itself is discretion. How to make the process regulation out ofcirculation regulation dilemma is the final problem we must solve, through Specificing theprocedure provision must be applicable, expanding the scope of the legal procedures andthe judicial application of the principle of due process can effectively solve the problem,finally the administrative procedure regulation will surely promote the positive developmentof administrative discretion.