Judicial Application Of Administrative Discretionary Contraction Theory

In recent years,a number of policies and regulations have been promulgated in our country to restrict the administrative discretion and reduce the discretion space in various administrative fields,but the relevant provisions have not been refined.The theory of administrative discretion contraction plays a very limited role in the realization of case justice in judicial practice.Based on the theory of administrative discretion contraction is of great significance to judicial practice,and has not been applied to this theory makes it difficult to unify the judicial standards of related issues,so we should promote the theory of administrative discretion contraction to be clearly applied in judicial practice.Apart from the introduction and conclusion,the text is divided into five chapters:Chapter 1 introduces the basic theory of administrative discretion contraction theory.This paper introduces the concept of administrative discretion contraction by expounding the emergence and meaning of administrative discretion,and introduces several theories of composing elements of administrative discretion contraction that exist in academic circles at present.On this basis,this paper analyzes the significance of administrative discretion contraction theory of judicial application.Chapter 2 is to analyze and summarize the current situation of the development of the theory of administrative discretion contraction in the judicial practice of our country.In recent years,the theoretical research has made a breakthrough in theory,and gradually began to be affirmed in the form of judicial interpretation,normative documents,but judicial application is still lagging behind.This paper introduces the practice of the theory of implicit discretion contraction in judicial practice and the defects of the theory,and further analyzes the obstacles that the theory of administrative discretion contraction has been clearly applied in judicial practice.Chapter 3 is examples of the application of the constitution and limitation of administrative discretion contraction in the cases of administrative negligence of public security.Based on the analysis of a large number of judicial cases of administrative negligence of public security,the author takes the theory of "four elements" as the most suitable constitutive element for the application of the theory.And on the administrative discretion contraction of judicial application of the process of how to judge the elements of how to define.From the point of view of legal factor and fact factor,the paper gives the standard of principle to the limit of administrative discretion contraction.It provides an effective way to use the theory of contraction of administrative discretion to conduct judicial trial in the future.Chapter 4 is to make recommendations on the judicial application of the administrative discretion contraction theory.In view of the application and existing problems of the theory of administrative discretion contraction in our country at present,it should be considered from the angles of strengthening the breadth and depth of theoretical research,refining and perfecting relevant legislation,improving the ability of administrative organs to apply the theory of discretion contraction,and strengthening the ability of judicial organs to apply the theory of discretion contraction,etc.Improve the judicial application of the administrative discretion contraction theory,so that the theory plays its due role in practice.The theory of administrative discretion contraction has been gradually established in the policies and regulations,and gradually improved.It is imperative to explore the application of the theory and related provisions in practice.Through the analysis of the phenomenon that judicial application lags behind in the theory of administrative discretion contraction in our country,which leads to different judgments in the same case.The conclusion is that the current theoretical research started late and is not closely related to practice,the legislative provisions have not been refined,the administrative organs lack the consciousness to limit the discretion,the judiciary is difficult to flexibly use the theory of discretion contraction,and so on.Taking the cases of public security administrative dereliction of duty as an example in our country's judicial practice,combined with the existing theory of the constitutive elements of the theory of the contraction of discretion.The importance of the injured legal interests,the predictability of the danger,the evasiveness of the damage result and the expectant elements of the administrative behavior are affirmed,and the urgent elements of danger are excluded.In addition,the limits of discretionary contraction should take into account both legal and factual factors.At the same time,it introduces the theory of administrative discretion contraction into public security administrative negligence cases to solve the related judicial practice problems.Aiming at the application and existing problems of the theory of administrative discretion contraction in our country at present.From the angle of strengthening the breadth and depth of theoretical research,refining and perfecting relevant legislation,improving the ability of administrative organs to apply the theory of discretion contraction,and strengthening the ability of judicial organs to apply the theory of discretion contraction,etc.Perfect the judicial application of the theory of administrative discretion contraction in our country.Through the analysis of the judicial application of the theory,strengthen the feasibility of the application of the theory in practice,so as to make the theory of administrative discretion to play a role in the judicial practice,solve the problem.