Research On Judicial Review Of Administrative Discretion

Administrative discretion is the core of modern administration.The executive authorities have a wide range of discretion,on the one hand to efficiently deal with all kinds of social issues,on the other hand,often abuse their discretion to infringe the legitimate rights of citizens.Countries gradually shift from "the principle of discretion not to review" to "the discretion can be subject to judicial review".This article intends to study the issue of judicial review of administrative discretion in China from the perspective of empirical analysis.The author chooses China Judgements Online as a database,selects samples and statistically analyzes the situation of our country's courts examining administrative discretion.This article is divided into four parts.The first part is the chief issue for judicial review of administrative discretion.The author believes that the judicial review of administrative discretion have the following three chief issues.Firstly,under the field of empirical evidence,is there a situation in our country for judicial review of administrative discretion? According to the administrative case,discretion and other key words in the China Judgements Online,we get a total of 34884 query results.Through sample analysis,we can see that "administrative discretion" has entered the category of judicial practice of administrative litigation.Secondly,what is the "administrative discretion" in judicial review of administrative discretion? From the perspectives of civil law scholars,Anglo-American law scholars and Chinese scholars,the author concludes that consensus should be reached on the recognition of administrative discretion.Thirdly,is there any need for judicial review of administrative discretion? The author elaborates from the aspects of functionalism allocation of power,the goal of the rule of law and the purpose of administrative litigation,and thinks that the administrative discretion of judicial review is necessary.The second part is the scope of the judicial review of the administrative discretion.To discuss the judicial review of administrative discretion,the first problem to be solved is whether administrative discretion can be included in the scope of administrative proceedings.The author believes that we should adopt a relaxed attitude to understand the scope of the acceptance of administrative discretion and should not set up a fence at the entry of administrative litigation to keep administrative discretion out of the door.It is undeniable that the amendment of the Administrative Procedure Law in 2014 on the part of the scope of the case is advanced,but this progress is limited.The author believes that it is necessary to furtherexpand the scope of the acceptance of administrative proceedings,the expansion of the approach to take a general affirmation plus a negative legislative model,in addition to denial of negligence,the rights and obligations of individuals or organizations have an actual effect on all administrative acts and part of the deeds Act,Should be included in the scope of acceptance of administrative proceedings.The third part is the review standard of judicial review of administrative discretion.On the one hand,judging from the law,there are six statutory examination standards for the administrative discretion of judicial review.The author believes that the abuse of power and apparently improper judicial review of administrative discretion statutory review of the standard,and the above two special statutory standards for an in-depth analysis.On the other hand,judging from judicial practice,there are still two hidden standards for censorship of administrative review,namely the principle of rationality and the principle of proportion.After analyzing and arguing,the author finds that although the two standards for reviewing are not legalized,they are powerful weapons for the substantive examination of administrative discretion.To achieve judicial control of administrative discretion,formal review alone is not enough,but also must ensure that they can be substantive examination.The fourth part is the type of the intensity of the judicial review.From a theoretical point of view,"typed" is a jurisprudence approach that many scholars advocate.From a practical point of view,all countries consciously or unconsciously carry out the work of intensifying the type and systemization of judicial review.The author believes that the type of administrative review of the judicial review of the intensity should include two main elements.Firstly,determine the strength of judicial review of the relevant factors;Secondly,the strength of various types of judicial review the specific requirements.The factors that determine the strength of judicial review include: protection of provisions of laws,major rights and interests,division of powers and so on.With reference to the above factors,the intensity of judicial review of administrative discretion can be divided into the intensity of low-level examination,the intensity of intermediate examination of intensity and the degree of strict examination,the object of examination of three kinds of intensity is different,and the corresponding examination standards are also different.