On Judicial Review Of Administrative Discretionary Benchmarks

Administrative discretionary benchmark is a specific operational standard that can be implemented by the administrative organ with discretionary power to refine and quantify the discretionary power according to certain principles and by considering relevant factors within the space of discretionary power stipulated by laws and regulations.As for the nature of the discretionary benchmarks,some doctrines believe that they belong to the administrative legislation,while others believe that they belong to the administrative rules.However,regardless of the viewpoint,the self-made property of the administrative discretionary benchmarks brings about their internal effects and gradually generates external effects through their long-term repeated application.The benchmark of discretionary power studied in this paper has the rank of other normative documents in the legal system.Judicial review of the benchmark of discretionary power refers to a way of supervision in which the court,through a certain process and according to certain criteria,reviews whether the benchmark of administrative discretionary power itself and the application of the benchmark of discretionary power conforms to the relevant provisions of laws and regulations in administrative litigation cases.The source of its justification is the principle of constitutional supremacy and the theory of judicial finality among the legal principles,as well as the legal provisions of the current Administrative Procedure Law on the scope of accepted cases.At the same time,the judicial review of the benchmark of discretionary power is a need to promote the administration according to law through the supervision of administrative power by judicial power,and is also a need to judge the legality of specific administrative acts.Therefore,the judicial review of the benchmark of discretionary power has its necessity.As for the current situation of judicial review of the benchmark of discretionary power in practice,the following problems exist in the judicial review of the benchmark of discretionary power through the analysis and summarization of the data of the search results of the judgment documents online: first of all,the judicial review standard is vague,which should be further clarified through legislation or through the issuance of judicial interpretation,so that the judicial review standard of the benchmark of discretionary power can be further clarified in practice.In this regard,the judicial review standard of the discretionary benchmark should be further clarified through legislation or judicial interpretation,so that in practice,there is a trace for the judicial review of administrative acts and the benchmark of discretionary power.Secondly,the intensity of judicial review on whether the benchmark of discretionary power is applicable is uncertain,in this regard,the judicial review activities cannot simply find that the benchmark of discretionary power escapes from the law,but should allow the administrative organ to escape from the benchmark of discretionary power under the premise of stating reasonable reasons.Finally,the utilization rate of general legal principles in the judicial review of the benchmark of discretion is low,for this problem,the connotation of general legal principles and the use of standards should be incorporated into the explicit provisions of the administrative procedure law,and through the introduction of guiding cases,the introduction of judicial interpretation to guide its application.For the judicial review of the benchmark of discretionary power in individual cases,it should be carried out in accordance with the steps of reviewing the reasonableness and legality of the text of the benchmark of discretionary power and then judicial review of the application of the benchmark of discretionary power.