Study On Administrative Discretion Standard

In the age of globalization,we must recognize the demands of the new era on administrative methods.This kind of future oriented administrative activities,because there is no clear basis for reference.We need to be equipped with dynamic, personalized control means.Under this background,the discretion standard system takes advantage of the opportunity to live,as a new way to regulate the administrative discretion, it has entered into the research field of administrative law. The main research task of this thesis is to complete the relevant theory of administrative discretion standard combing and analysis, thinking and response to the problems existing in practice.This article is divided into three parts, the main contents are as follows:The first part,the main content is the basic theories of China's administrative discretion standard.Firstly, by analyzing the concepts of administrative discretion standard.Reflection on "the elements of discretion" and "the effect of discretion",the two different viewpoints are mainly view about the discretion standard in our country at present.The elements of discretion's view is discretion can finding and application of law exists discretion, but the result is only.The effect of discretion's view is discretion can not exist in the progress of finding and application of the law, discretion exists only in the process of the law applicable to the fact.Then, put forward the "discretionary monism" is more rational view. "Discretionary monism" is that between the elements of discretion and effect of discretion even though there are differences, only differences in the amount and in essence is no difference.This part lays the foundation for definition the concept of administrative discretion standard.Then,analysis the discretion standard of qualitative,discusses two discretion view is that "the specific discretion view" that the discretion standard can help administrative law enforcement but there is no legal binding force and "regulation of discretionary view" that discretion is the extension of the concept of law and has binding force.And put forward own opinion on this.At last get the conclusion that study from the perspective of administrative process is more reasonable from the dispute about the perspective of administrative discretion standard.This part is the foundation of this thesis.The second part, discusses the administrative discretion standard in practice in China.Starting from the central policy.The first list of some classic cases in real life,make people has a specific and sensory understanding about how the policy has a profound impact on the implementation of administrative discretion standard and make people have a realistic understanding about the game between the official documents and ruling by law.Then make a comb to the central documents that associated with discretion standard.In 2006 by the CPC central office hall and the general office of the State Council jointly issued the < on preventing and resolving administrative disputes perfect the administrative dispute resolution mechanism > is proposed to refine and quantify the administrative discretion rights to the Fourth Plenary Session of the 18 in 2014 formally proposed the establishment of a sound administrative discretion standard system.Along the way, we can see that the central understanding discretion standard is deepening, the positioning is also more and more clear.We can get the conclusion that attention on discretion standard of the central government with each place has issued relevant documents of speed is proportional.The central document into reality is often lead the result of various parts temporarily cooperation in law enforcement.From the problems exposed in the interests of the administrative counterpart is often difficult to be effectively protected.Elaborated in detail the central policy,then combined with the practice of various parts of the actual effect analysis of discretion standard, through the analysis of caused widespread concern in the judicial circle of real case,points out the problems existing in the operation of the process mainly is the discretion standard too tight or too loose problems and justice for the intervention of the boundary problem.There is a real level of analysis of administrative discretion standard, this part of the writing is also related to the comparison of extraterritorial, from that we can absorb some of the practices of the reference.The third part,outlook for China's administrative discretion standard discussion.The theoretical level includes many scholars in different reach on the basis of consensus, such as the definition and qualitative consensus.From the perspective of transformation,discretion standard is the key to the control of administrative discretion,considering the specialty,benefits and other issues,the study perspective focused on internal administrative is a more reasonable choice.From the administrative efficiency and judicial efficiency perspective,nodoubt to the "administrative process" as a study perspective to maximize benefits.The study content,in the past emphasized that control administrative discretion by discretion standard,but ignored the control of discretion standard's formulate,study on this aspect should be improved.Whether the discretion standard value to the greatest extent depends on whether its own meet as discretion standard should have the quality, this article from the two aspects of the effect of format and plot detailed discussed this.