Making Of Administrative Discretion Standard

Nowadays, government’s administrative power is expanding day by day, it has become the main issue of administrative law as to how to control the power. The legislature, judiciary and administrative agency have never stopped trying to control the power, and the administrative discretion standard is set along the route of Rule Doctrine to compress the discretion space and maintain self-control of administrative agency while ensuring its creativity and flexibility. The administrative discretion standard, which specifies the scope and range of discretion in administrative law, can efficiently narrow down the broad range of administrative discretion and then realize the discretionary justice. This paper analyzes fundamental theory as the conception, the property and effect of administrative discretion standard, as well as its justification and legitimacy, while discussing the setting of this standard. Based on this analysis, it further discusses the bodies of setting standard and the authority of these bodies, as well as the basis, origin and regulation technology on and from which the administrative agency setting administrative discretion standard. The paper attempts to do creative research after summarizing and analyzing relative theories established by researchers home and abroad.The first part is introduction, which introduces the innovation on system of administration discretion standard and relative theories of administrative agency’s setting limits on its own right, which includes the theory of administrative self-restraint, of rule control, and regulation by soft law. This part also talks about existing research on the administrative discretion standard home and abroad, setting background for research done later.The second part does a general study on administrative discretion standard. Through academic discussion on concept, property, effect and function of administrative discretion standard, the theoretical foundation of it is clarified and the justification and legitimacy of it are also demonstrated.The third part researches on agency authorized t the administrative standard and the limits of authority it faces, the assignment of rights on setting the standard among all-level administrative organizations, as required by administrative practice and norm of law. It is also pointed out that the enacting of the standard should not only be a kind of administrative organization’s right, but also its duty that it should try to fulfill.The fourth part discusses the basis of setting the administrative discretion standard by studying the form and essence of it, as the essential basis is the aim of legislation, basic law principles and regional social circumstances, and the superficial basis is administrative rule, convention and public policy.The fifth part, setting the judicial discretion on administrative penalty as example, studies the technique of restraint related to the setting of administrative discretion standard, which mainly includes the explanation on uncertain legal concepts, the refinement technology of the conditions, the division of the discretion range and arrangement for exceptional provisions.