Research On The Legal Governance About Inaction Of Administrative Discretion

The inaction of administrative discretion is an important type of administrative discretion violation,which has higher concealment and is not easy to be discovered.How to control and standardize it is a difficult problem of administration by law.At present,the research on administrative discretion violation in China mainly focuses on the action of administrative discretion.The research on the type of the inaction of administrative discretion is insufficient,and the relevant legal provisions are not perfect.So it leads to the lack of a systematic theoretical and practical system of the inaction of administrative discretion.The inaction of administrative discretion belongs to the basic form of administrative inaction.Non-performance of statutory duty is the essential attribute of the inaction of administrative discretion.Different from the general administrative inaction,the obligation of the the inaction of administrative discretion usually comes from two aspects.The first aspect is discretionary provisions.Discretionary provisions generally refer to the discretion directly granted by the law to administrative organs in a certain space.In special cases,it may also be indirectly granted to administrative organs through administrative duties implied in laws and regulations.The second aspect is the violation of the discretionary shrinkage requirement into an obligation.According to the different sources of obligation and the current research on the illegal types of administrative discretion in the field of administrative law,the inaction of administrative discretion can be divided into three types: inaction constitutes discretion laziness,inaction constitutes discretion abuse and inaction violates the discretionary shrinkage requirement.The harmful and illegal form of three types is different,and it should be targeted for legal governance.In order to solve the problem of inaction constitutes discretion laziness,this paper analyzes from the perspective of internal control of administration in addition to legislative supply and judicial review.By improving the administrative discretion benchmark system and the administrative justification system,we can promote the administrative organs to perform their duties according to law and avoid the occurrence of the inaction ofadministrative discretion.In view of the inaction constitutes discretion abuse,except the internal control of administration,it can avoid the inaction of administrative discretion by fine legislation.At the same time,we can set four specific form of "discretion abuse","improper purpose","consider irrelevant or not considering relevant factors","improper inaction" and "unreasonable delay" to help the court for judicial review.We can set the mechanism of administrative accountability to ensure legal liability associated with Political discipline.The governance measures of the inaction violate the discretionary shrinkage requirement compared with the former two types are both similarities and differences.Especially in the field of judicial oversight,this type violates the discretionary shrinkage requirement,which infringes the major legal interests of the personal health rights of citizens.Therefore,it is necessary to set a more strict judicial review standard of such cases.The judicial review method of substantive judgment can be determined to strengthen the judicial supervision over such cases,and the compensation clause of this type can be added to perfect the lawsuit of state compensation.