Research On The System Of Administrative License Discretion Standards

The study of the administrative discretion benchmark system has been based on the administrative penalty scale for decades as the main research perspective.The existence of the discretionary power and the vigorous development of the administrative discretionary benchmark system have produced a discretionary basis for administrative licensing.The administrative license discretion benchmark broke through the original and typical application of the administrative discretionary benchmark system in the field of administrative punishment.The administrative license discretion benchmark has the common features of the general discretionary benchmark,which is reflected in its nature orientation,theoretical basis,legitimacy and functionality.However,because the attributes of administrative licenses are different from administrative penalties,the administrative license discretion benchmark has a relatively distinct legal personality.In terms of technical construction,in the discretionary benchmark of exclusive licensing,the traditional technical construction is expressed as “plot quantification + plot optimization” in terms of “plot refinement”.In terms of openness,the administrative license discretionary benchmark exists as the examination and approval standard of the administrative subject and the preparation standard of the administrative counterpart.Its dual role of internal and external has put forward higher requirements for the openness of the administrative license discretionary benchmark.The role of the administrative license discretionary benchmark constitutes the substantive legitimacy of its direct external effectiveness,and its external effectiveness provides the basis for its judicial review.The current administrative licensing discretion benchmark is in the midst of a booming development boom.The central government issued the ?Civil Administrative License Discretion Benchmark?,and the place is spreading everywhere.Due to the limitation of time and energy,the author searches for typical provinces and cities such as Hunan,Zhejiang,Guangdong,and finds that there are many problems in the development of the license discretionary benchmark: First of all,the formulation of “sportsization” has made the benchmark texts have different subjects,unclear rights,chaotic forms,quantitative expansion,and duplication of content.Secondly,in the implementation,the licensing benchmark has a “virtualization” phenomenon on both the reference and the escape issue.To standardize China's administrative licensing discretion system,the possible path is: The first is to divide the authority for the determination of the administrative licensing discretion and clearly define the subject.The authority for making the administrative license discretion base is allocated within the closed interval of the provincial and ministerial administrative agencies or above the county administrative agency.The second is to standardize the process,and adopt the generation mode of interaction between the upper and lower sides.In the whole process of formulation and revision of the benchmark,the system of introducing general public participation,introducing experts and not involving the public participation is adopted according to different situations.On the issue of openness,in line with the dual role of the internal review criteria and the external preparation standards,the administrative authority's discretionary benchmarks should be “opened”.Third,the technical construction of the license discretionary benchmark should be divided into “refinement plots” and “optimized plots” in the field of exclusive licenses.The legal concept of uncertainty should be as specific as possible in the future formulation.The degree of specificity of the discretionary benchmark should be as specific as possible within the scope of logic and technical possibilities,and the degree of discretionary space is not allowed.At the same time,the content of the benchmark should clearly define the disengagement clause,and the reasoning system should be fulfilled when the discretionary benchmark is taken.Fourth,the judicial review of the administrative license discretion benchmark should follow the "two-way degree-openness-external effectiveness-judicial review basis" thinking approach.Make special institutional arrangements for the discretionary benchmarks on which the review is based.The court's review of the discretionary benchmark as the object of review not only has the power to review its legitimacy,but also the right to review its legitimacy.