Study On The Substantial Standard Of Judicial Control Of Administrative Discretion

Important Value Goal of the modern administrative law is effective control of administrative discretion in order to achieve justice cases, judicial control, although a traditional path, but it is also an integral part.In Germany and Japan, represented by civil law focuses discretion dualism distinguish uncertain legal concepts(or elements of discretion) and the effect of discretion,namely that the discretion exists not only in the legal effects of the choice, but also in the fact that the statutory requirements identified.In Germany and Japan administrative law, the scope for discretion exists controversial Japanese scholars believe that there is a possibility discretion should be recognized in the fact that the statutory requirements, and German administrative law would only recognize the legal effect of discretion.That issue is whether the discretion to admit the problem requirement discretion or not, I believe that the existence of the problem of debatable theory, theoretically only presume the correctness and can not respond to the plight of the practice, but the fact that the statutory value to meet requirements in the process of legal interpretation and subsumption process simplification measure has been processed.Many possibilities for the uncertain legal concept interpretation should be recognized by the administration in the exercise of administrative discretion in the process of selecting That discretion exists, through the progressive realization of the type of case, take a different strength of review and examination methods for different types of administrative acts.In addition, the Anglo-American administrative law will be the basis for judicial review of administrative acts of strength into legal and factual issues, however, this distinction is also relative, plus judicial practice, the Court of Appeal only for legal review, the author examines the macro and micro constraints to review the selection criteria and the principle of common law reasonable compared with the principle of proportionality, combined with China’s Administrative Litigation Legislation Problems that should be the principle of proportionality as a judge review of administrative discretion review of the legality of the exercise of the right analysis tools, to determine the specific substantive examination as the standard scenario of the cases, a reasonable delineation connotation under the principle of limited review.