A Study On The Legal Control Of Administrative Discretion Under Public Health Emergencies

There are differences in internal attributes and external representations between administrative discretion under public health emergencies and that under normal conditions.From the perspective of internal attributes,the flow between restraint and discretion within administrative discretion under public health emergencies shows a"retrospective",that is,restraint discretion decreases and discretion increases.This internal backtracking change makes the administrative discretion under public health emergencies more "free" than that under normal conditions,showing an expansion trend and greatly increasing the risk of abuse.During the COVID-19,many administrative discretion was abused.In addition to the expansion of administrative discretion,the reasons are also reflected in the too general emergency legal norms,the limitations of law enforcement personnel’s cognition and the insufficient response of supervision mechanism.Therefore,it is urgent to control the administrative discretion under public health emergencies.The original internal and external control means can not deal with the special nature of administrative discretion under public health emergencies,nor can they meet the expectations of administrative counterparts for the protection of rights.It is necessary to improve or change its control mode,and think about new paths in internal control and external control.In the path selection of internal control,we can adopt the ways of issuing administrative cases and practices,institutional discretion benchmarks or rule guidelines,establishing special procedures for emergency state,emergency training for law enforcement personnel,application of electronic technology and so on.In terms of legislative control,we should speed up the improvement of the emergency legal system,formulate emergency legal norms at different stages,at different levels and in different fields,and enhance the operability of emergency legal norms.Judicial review can be used in judicial control.Through the comparison between the transformed internal control and external control,it can be seen that for the administrative discretion under public health emergencies,legislative control and judicial control have obvious limitations.On the one hand,because public health emergencies are characterized as a legitimate reason for power expansion,the legislative power and judicial power opposite to the executive power have to make concessions.The principle of power control within the administrative subject has not changed fundamentally.By following the theory of administrative self-control,the administrative subject has the ability to control its own power.The spontaneity,professionalism and synchronization of internal control also shows that internal control has obvious advantages both in the adoption of methods and the effect of control.