Research On Judicial Review Of The Obligation Of Reasons-giving Under Administrative Discretion

“Chenzhou Fanlongdui mining company case”,an administrative reconsideration case was caused by improper exercise of discretion.The judicatory ground that was given by the Supreme People's Court came to the conclusion that the administrative subjects should fulfill the obligation of reasons-giving and be subject to judicial review in the process of exercising discretion.Based on the combing of the case,this article holds that it is an effective method to regulate discretion-using by imposing judicial review on the obligation of reasons-giving,which needs the response of theory badly.The discretionary reasoning is the process of persuading the administrative subjects themselves,through which they can be forced to exercise discretion prudently,which can not only restrain the arbitrariness of discretion,but also improve the rationality of discretion.Meanwhile,it's also the process of persuading the administrative objects and increase the acceptability of discretion by externalizing the inner considerations.What's more,it's still the process of persuading the courts and makes discretion more censorable by means of showing thoughts of discretion and providing review materials for courts.Therefore,the performance of the obligation of reasons-giving becomes the key for the court to judge whether the exercise of discretion is justified or not.As for the judicial review of discretion,this article considers that the specific ways of review should depend on the nature of discretion.With regard to the discretion of legal element,reasons-giving should mainly focus on the embodiment of the legal concept of uncertainty.The requirement of legitimacy review can be satisfied only when the external justification is logical and the premise is generally agreed.With regard to the discretion of legal effect,reasons-giving should mainly focus on judging of value and weighing of interests.Therequirement of rationality review can be satisfied only when major relevant factors are considered,given reasonable weight,and properly compared and balanced.With regard to the discretion of legal process,according to the different sources of obligations,it can be classified into three categories:specific statutory procedural discretion,abstract statutory procedural discretion and non-statutory procedural discretion.For the majority of the specific statutory procedural discretion,courts should adopt the review of formal legitimacy,with emphasis on the integrity of reasoning,and mainly apply to the standard of“violation of statutory procedure”.For declining to follow the requirement of specific statutory procedures,as well as abstract statutory procedural discretion and non-statutory procedural discretion,courts should adopt the review of substantial legitimacy,with emphasis on the acceptability of reasoning,and mainly apply to the standards of“abuse of authority”and“obvious improperness”.Above all,the degree of reasoning should be matched with the intensity of discretion,otherwise it may be subject to the negative evaluation of judicial power.In recent years,with the rise of service administration,discretion has been expanding from the traditional fields of order administrative to the newly-emerging fields of service administrative.Moreover,on the basis of the discretion of legal element,the discretion of legal effect and the discretion of legal process,practice has been created a new discretion called “the discretion of legal disposition”.The obligation of reasons-giving has changed accordingly.The subjects of reasoning have been extended to all types of subjects who exercise public power.Enlarge the contents of reasoning to include “transfer”,“negotiation”and“implementation”,which exists in the discretion of legal disposition.The methods of reasoning pay more attention to the processes of reasoning and the results of reasoning.Add some details to the requirements of reasoning,which includes complying with the principles of private law and the provisions of the agreement,completing administrative tasks more effectively and taking private interests into consideration.In view of the changes of the obligation of reasons-giving,this article puts forward two countermeasures:the supplementary regulation of soft laws and the rationality review under substantial justice,with the purpose of providing some possible directions for the responsive evolvement of judicial review.The improvement of the system will continue to be related to the joint efforts of the circle of theory and practice.