Research On Administrative Discretionary Standard

The administrative discretionary standard is a kind of institutional innovation in which the executive authorities refine the higher-level laws and regulate the use of administrative discretion subject to the category and scope of laws,and is self-commitment of executive authorities.It could make up for the absence of high-level administrative agencies in regulating administrative discretion,and help each level of administrative agencies to play a better role,thus to achieve joint power control of all levels.It is also an internal supervision of the administrative system,which confines power to a "cage" of system.The administrative discretionary standard creates a bridge between the stability of law and the complexity of reality,and it acts as a regulator between principle and flexibility,which will make administrative behavior more fair and reasonable.According to the Constitution and constitutive law,the relevant administrative agencies have the power to make specific provisions and formulate specific rules based on higher level laws.The explicit authorization by special regulations gives direct basis for the administrative agencies to enact various types of discretionary standards.The purpose for formulating administrative discretionary standard is to better implement laws and regulations,to regulate the discretion of law enforcement personnel in a lawful way,and to provide a criterion for the exercise of discretionary power,which is the process of exercising statutory powers and functions by executive authority.No one should doubt the effect of the administrative discretionary standard within administrative system,which constrains discretionary actions of administrative agencies and law enforcement personnel.Such effect will inevitably be transmitted to administrative counterparts through law enforcement activities of administrative agencies and its personnel,thus protecting the legitimate rights and interests of administrative counterparts.The current administrative discretionary standard in China still has some problems in practice,such as non-standard use of names,ambiguous subjects,over-simplified consideration,and lack of rigidity in application.The root of these problems lies in people’s misunderstanding of the administrative discretionary standard and the absence of its related procedures and supporting systems.The difficulty in controlling reasonable use of administrative discretionary standard and the limited disclosure of relevant information are also important causes of these problems.In order to make the administrative discretionary standard work better,improving its setting and application step by step becomes necessary.