Research On The Effects Of Administrative Discretion Standard

With our society rapidly developing nowadays,it’s less likely to cope with the complex problems of modern government and modern justice merely by means of rules without the intervention of discretion in reconciliation.In other words,the work of government can’t be efficient without administrative discretion.However,discretion going beyond its limits will result in serious consequences,and it is neither scientific nor reasonable to totally remove discretion.Therefore,the most sensible way is to strike a balance between rules and discretion so as to resolve the contradiction between them,which gives birth to administrative discretion standard.ed from the law enforcement experience of grass-root administrative departments,discretion standard is a refined and quantified standard of behavior.It has played an active role in regulating the exercise of administrative discretion and preventing the abuse of administrative discretion.The fact that it arises and matures meets the needs of transitional period and complies with the trend of modern administrative law.Throughout the writing,the author attempts to demonstrate the internal and external effectiveness of administrative discretion standard in actual work from a validity perspective.This paper consists of four sections,in addition to the introduction and conclusion.The first section shows the definition of administrative discretion standard,then distinguishes related confusing concepts and further explores the nature of administrative discretion standard.Taking a typical case for example,the second section generates the discussion on the legal effectiveness of the administrative discretion standard,demonstrating the standard’s effectiveness basis with its constitutionality and rationality serving as the cut-in point.The third part probes into the internal effectiveness of administrative discretion standard,pointing out that the direct objects governed by administrative discretion standard are the rule-making departments themselves as well as the inferior administrative organs and public servants.On one hand,administrative discretion standard is usually supposedto precede general upper law.In case inferior authorities and public servants do not apply the administrative discretion standard rendered by higher authorities,justifications should be presented,which means that no one can succeed in law evasion by turning to upper law.On the other hand,supposing that both the superior and subordinate administrative organs set administrative discretion standard based on the same administrative lgeal norm,there comes the possibility that the discretion standards of different tiers clash with each other in terms of validity.The fourth section concentrates on the external validity of administrative discretion standard.For one thing,administrative discretion standard can intervene in the rights and duties of administrative counterpart through specific administrative actions,thus having external effectivenss to bind the administrative counterpart.For another,administrative discretion standard has very limited binding effect upon the court.In many cases,administrative discretion standard in the form of normative documents is cited by the judge in the reason part of the judgment only as references to measure and decide whether the administrative action is legitimate.