A Research On The Control Of The Administrative Discretion In The Administrative Execution Of Law In China

The administrative discretion is the core of the administrative power and the main form of its expression. The complexity of the administrative power makes the administration discretion extensively exist in the field of the administration, and become important sign of the contemporary development administrative law too. In order to guarantee the administrative efficiency, to meet the needs of the modern administration and to realize the administration of the state according to law, the administrative discretion must be enlarged. However, the agility of the administrative discretion easily causes the abuse of the administrative discretion. The abuse of the administrative discretion must infringed upon the legal rights and interests of the opponents of the administrative person and then becomes the threads to the administration of the state according to law. Therefore, the administrative discretion must be controlled. The modern administration law is exactly developed in the process of the enlargement of and the control of the administrative discretion.In order to prevent administrative discretion from being abused, all kinds of treasures must be taken, which has been not only one of the important tasks of the administrative law but the problem the administration needs to solve.This thesis takes the methods of the integration of the theories and the practice, the portrait and the landscape orientation and the comparatives analysis to analyze and study the control of the administrative discretion. It contains tree parts:The first part expatiates the theories of the definition, character and function of the administrative discretion. Firstly, based on the analysis of the definition of the administrative discretion the scholars at home and abroad have given, the administrative discretion was given a new concept. Secondly, based on the analysis of the classification of the administrative discretion the scholars at home and abroad have given, the classification of the administrative discretion is done over again. Thirdly, from three aspects of guaranteeing the efficiency, rapidness of theadministration, making up the shortcoming of the lawmaking and ensuring the fairness of the society, the meaning of the existence of the administrative discretion in China is analyzed in this thesis.The second part analyzes the loss control of the administrative discretion in China. All the cases of the loss control of the administrative discretion in the course of the execution of the law in China, are listed out and the causes are also provided.The third part puts forward the treasures to strengthen the control of the administrative discretion in China. Based on the conclusion and reference to the advanced experience the domestic scholars provided, the treasures taken to enhance the control of the administrative discretion are brought up in this thesis. Firstly, the principle of authorization within treasures must be insisted. On one hand, the inner supervision of the administrative organs must be strengthened by way of establishing the system of the administrative relief supervision, consummating the mechanism of the administrative supervision, optimizing the inner control of the administration organs, and enhancing the construction of the contingents of the administrative execution of law and so on. On the other hand, on the condition that setting up the principle of the supervision of the Congress, the supervision of the Congress must be strengthened by means of optimizing the mechanism of the implementation of the representative duty public and so forth. Secondly, the legal and reasonable principle must be adopted, the principle of "the administration censoring first and the court censoring last" must be introduced, what's more, the scope of the judicatory censoring the administrative behaviors in the execution of the law need widening, the system of consulting precedents may be established, in order to enhance the judicatory supervision.There are three innovation points in this thesis:To begin with, according to the legal attribute...