Administrative Discretion Benchmark Problem Research

Administration’s life lies in the discretion. With the development of modernsociety, the administrative institution ‘s supervision and management of social life isexpanding in function-scope. In order to adapt with the changing reality, flexible andeffective solution to a problem is the essential method. Only if the administrative organshave administrative discretion, can they actively realize themselves’ social managementfunctions, but its negative side can not be ignored. The discretionary space is too large,arbitrary law enforcement, abuse of discretion and other problems are emerging in anendless stream, not only be against the legitimate rights and interests of the relativepeople of administration, undermine good social management order, damage the forceof law and judicial authority, but also will bring great negative influence to theadministrative organs’ public image. Based on this, how to correctly exercise the powerof administrative discretion and bound the administrative discretion with the effectiveregulation has become the key and difficult problems which being worked at byadministrative law scholars.And discussion of discretion benchmark in academic worldnever ceased. Administrative discretion benchmark of administrative discretion isessentially to confirm with the specification, is an effective means to guarantee properoperation of executive power. Regions in setting administrative discretion benchmark,not only to adjust measures to local conditions, and analyzing the specific issues willalso fight to the abuse of administrative discretion, so as to avoid because of theexcessive expansion of executive power in the a series of negative problems.But thetheoretical research and judicial practice of China’s system of administrative discretionare still at the starting stage. The theory research and practice development seem to existcertain degree of dislocation.The purpose of this paper is just to hope that through the in-depth study of thesystem of administrative discretion benchmark, can problems be solved related to thesystem of administrative discretion. In the content, firstly from a theoretical point ofview, set the concepts of administrative discretion and the administrative discretionbenchmark as the starting point, and clarified related definitions: In nature theadministrative discretion benchmark system belonged to administrative rules ofinterpretative rules; In effect, it mainly possessed internal effectiveness but to a certainextent reached to the external validity; From function application point, the main use of it rested with bounding administrative power and protecting the rights and interests ofthe relative people of regulation and making up the shortage of legislation. Then fromthe three dimensions: the control of power, the guidance of administration and thepromoting of legal system, which embodied the necessity of the construction ofdiscretion benchmark system. Then this paper carried on the analysis to the foreigncountries and the domestic development status of the administrative discretionbenchmark,combed advanced experience of developed countries, and summed up thefocus on practical and theoretical problems existing in our country’s system ofadministrative discretion benchmark. Then launched problems existing in thedeveloping process of China’s system of administrative discretion, and extracted threecore problems: the subject, scope of application and control of technology. Finally, onthe basis of this, aiming at the core problems, combined with the advanced experienceof foreign countries, this paper put forward six suggestion on improving ouradministrative discretion benchmark system:The superior administrative organs mainlyconsist of the subject which tilt to the basic level; Expand the applicable scope ofadministrative discretion benchmark; Establish control technology from theconsideration of factors and the extent of discretion; Perfect the relevant national andlocal legislation and establish an effective evaluation mechanism.