Research On The Standard Of Judicial Review Of The Administrative Discretion

Administrative discretion as the typical characteristics of the public administr ation, which had been penetrating into the field of every nook and cranny. The 21st century later, the scopes of judicial review are also extended to the traditional administrative autonomy, judicial review of administrative discretion being exepted has ceased to exist . In this development tendency , attention to the boundry and shades which judicial intervention in the administration under the structure of the decentralization have theoretical and practical value. Especially in our current welfare administrative and intervention administrative coexisted social background. On the one hand,whether the court have deep processing power on the highly complex and uncertain and situation-dependent administrative discretion is worth discussing. On the other hand, the legislation will leave some need to explain or discretion space and stage, the court still can make a difference. The judge's mission is to balance the relationship between the public interests and the personal interests which have been affected by administrative organs, and the administrative organs with no direct clear regulation also needs to make the above balance. For what is a "good administration" , judicial and administrative authority may can not reach a consensus. In order to effectively avoid the potential conflict, the intervention of the courts on administrative discretion whether can find a relatively objective benchmark thereby extinguish the debate? Whether the two organs could reach a good interactive cooperation relationship? The answer to the above inquiry constitutes the core content of this paper.This paper is divided into four chapters.The first chapter is the definition of administrative discretion.By contrasting and rething the western developed countr ies'theory of administrative discretion,and rely on the present administrative,learn the academic result of"new administrative law"and administrative management theory. Put forward the definition of administrative discretion in a scientific way,the opinion is the discovery and determination of the fact,The explanation of the unce rtain legal concept and the application of law all contained discretion particles,thus make a basis for the below discussing.The chapter two explains judicial intervention in the administration under the structure of the decentralization. In view of the paradox between the necessity and legitimacy in the court's intervention with the limitation of judicial review. Through the comparative law analysis, the author clarify the boundaries of the court's intervention on the administrative discretion. But because of the theory differences between the legal issues and the facts issues. It is necessary to both limit the respectively intervention depth. For the intervention on the discretion of facts issues, this paper adopted rationality benchmarks. For the review depth of the legal problems discretion, then stay in the essence legitimacy interface.In the third chapter of this paper the author think deeply on the principle benchmark of judicial review in administrative discretion. With the management of administrative discretion from traditional noramative control of power mode to the functionalism building mode, the "principles of governance" in administrative discretion field has increasingly vast growth space. The author in this chapter respectively described the proportion principle of the Germany law and the reasonable principle of the British law, found different processing perspective and the two mutual confluence level and trends.At the same time introduced the proportion principle to China as a standard, creatively transformed the resonable principle into "abuse of power" of the Chinese administrative procedure law. Meanwhile analyzed the principle of narrow legitimate expectations and the principle of due process, And give great expectations for the principle of due process in the application of our judicial trial.The last chapter illustrates the judicial review'standards and it's application of administrative discretion in our country. In the third chapter, I turned the Britain's unreasonable principle into the abuse authority clauses in our country'law of Executive Accusation. Because the concept of power abuse is not certain, I prepare to explain the concept as not to meet statutory purposes, not relevant consideration, and injustice. Moreover, considering the principle's activism mode, I analysis it's standard and the practice as to find and build a suitable technical structure of fundamental review. The entire review standard has to fit executive powers'efficient and restriction, has to fit the court's role in the constitutional order. Then, the court will build good interaction with the administrative authorities.