The Exploring Of Administrative Discretion Standard System In Human Rights

It has been nearly ten years since “The State respects and preserves human rights” wasenshrined in the Constitution, which not only emphasizes the importance of human rights butalso stipulates the government as the subject of duty that is a common perspective inacademia. In the field of Administrative Law, Scholars have been concerning with humanrights, and the productive studies in terms of human rights theory of Administrative Lawenlightened me that the theory of administrative discretion could protect the rights of thesocial vulnerable group. Recently, the theory of administrative discretion has became a hotissue in academia. In view of Taiwan’s regulations about forbidding men who have sex withmen to donate blood, this paper demonstrates that the nature of the standard in the regulationsis one of administrative discretion standard, and further illustrates the problem which isgenerated from the undefined law concept when the blood bank staff implement such standardin practice. The point of this paper is: due to the uncertainty of science of the state standardsof risk restraining some undefined law concepts is necessarily interpreted by experts. Andsuch interpretation is one of the administrative discretions. The significance of the applicationof administrative discretion theory for explaining the risk restraining of state standards is tocover the vacancies in practice, because in China we can only rely on “human rules” forclearing improper standards. Especially in view of protection of human rights, as the essentialcontrol means of the administrative discretion standard, the principle of proportionality andother legal principles are applied for not only providing a flexible way to protect the socialvulnerable group but also effectively preventing overprotection or reversed discrimination.Based on analysis of the ban of MSM donation, this paper points that the government shouldactively protect LGBT’s human rights and guide social morality’s development so as topromote this social vulnerable group’ rights best.This paper has five parts:Introduction. This part introduces the background of the ban of MSM donation, the studymethod, the development of administrative discretion, this paper’s innovation and value.Chapter1, the nature of the discretion standard of MSM ban. In this part, we discuss whythis MSM ban can be a administrative discretion standard. I hold that the rule-making andimplement of the state standard is as one of the discretion standard and concrete discretion,therefore, the problems in terms of this MSM ban are analyzed. Chapter2, the development of administrative discretion theories. This part introducestraditional administrative discretion theories in the angle of the protection of human rights. Itbegan in German for distinguishing undefined law concept and judgment room, developed inTaiwan for judicial review. And further we discuss theories in Common Legal System and theenlightenment for Chinese researchers making.Chapter3, the analysis of undefined law concept “MSM”. This part illustrates theconflict between the safeguard of blood and the transmission of HIV. Due to thedangerousness of non-discovery of HIV in the beginning, I demonstrate MSM as undefinedlaw concept as a conclusions in chapter2, and further discuss the legality of MSM ban in lightof administrative discretion theory.Chapter4, enlightenment and conclusion. The last part does a summary and points outtwo directions: one is that what else can the government do for the LGBT group’s humanrights? The protection of LGBT rights is usually focused by the civil law or criminal law, andit is barely studied in view of administrative law. And the other is that can the government usediscretion theory to protect other social vulnerable groups? In my opinion, the governmentcould implement soft discretional means for guaranteeing administrative efficiency andprotecting human rights.