Theory Of The Administrative Discretion Benchmark System Of Our Country

Discretion is the soul of administrative law enforcement and reasonable administrative discretion has been the proper meaning and inevitable requirement of a law-governed administration.Under the social background of administering the government according to law,it is necessary to reasonably regulate the exercise of administrative discretion.Generally,The administrative discretionary standards can make the administrative organs more rationally exercise their administrative law enforcement power.It not only can control the abuse and alienation of the discretion,but also can prevent the discretion from getting rigid.Furthermore,it can make up for the loophole of law.The administrative discretionary standards,due to its “administrative self-control” and “rule of rules” nature,will bind the administrative organs,citizens and the court,though in different ways.As to the administrative law enforcement personnel,the administrative discretionary standards will make the law enforcement less arbitrary and the their legal responsibilities will be clearer;As to the citizens,they will have a better-informed knowledge of how to behave properly according to the law,and can better supervise the administrative organs due to their knowledge of those standards;As to the court,judges will be authorized with the power of examining the legality of the administrative discretionary standards themselves,in case of they being improperly enacted.Now the central and local governments are incessantly promoting the practice of discretionary standards.Discretionary standards have already been involved in many administrative areas and developed many types.However,many problems arose during the promotion of administrative discretionary standards.Such problems as: the name of the those standards has not yet been unified;duplication of the contents is still very common;in some occasions the administrative organs do not obey the standards they made themselves;administrative organs that can enact the standards has not been explicitly stipulated;its application has been limited to a narrowed scope;due process has not yet been established.However,the emergence of these problems is inevitable in the initial development of the discretionary standards and there is nothing to be afraid of.The promotion and improvement of the discretionary standard system needs to conform to the legal principles of legal administration,reasonable administration,trust protection,unification of authority and responsibility,and due process.We should also learn from the legal practices of other countries.A preliminary goal is to standardize the naming of the discretionary standards.Furthermore,administrative organs should adjust their discretionary standards to their local conditions and its specific administrative area so as to make the contents of the discretionary standards more reasonable.We also need to prevent the administrative organs from violating the standards they made themselves,possibly through the due process requirement.My proposal is that the ministries and provincial governments issue guidelines to stipulate the discretionary-standards-making authorities and leave specific discretionary-standards-making work to subordinate public entities.Other suggestions include expanding the scope of the application of the discretionary standards from administrative penalties only to other administrative powers.The standard-making process should be more democratic and transparent,which means more public participation should be brought in.discretionary standard system cannot be fully enforced without effective supervision.Supervision should come from both the legislative,executive and judicial branches,so that the formulation and operation of the discretionary standards will be smoother.