Research On The Effectiveness Of Administrative Discretion Standard To Functionalism Perspective

Wade once said: "Discretion is the core of administrative law." The existence of discretion is a great challenge to the rule of law in the eyes of those who strictly obey the principle. They think discretion should be strictly bound. Meanwhile, the administrative discretion standard provides an internal reference for administrative acts as internal administrative rules in foreign countries, though, more and more scholars began to recognize its external effect under certain conditions. In the region, some areas have begun to develop the appropriate "discretion standard" in combination of the local situation. The establishment of discretion standard system has become the criterion of providing better services to the public and society since the State Council promulgated the "Implementation Outline for comprehensively promoting administration according to law". Although the same is known as discretion standard, there are differences between domestic and overseas. Therefore, this paper is committed within the the effectiveness of interior discretion standard, combined with extra-territorial discretion standard system (mainly Germany and Japan), using comparative analysis, empirical analysis methods, hoping that can benefit both the administrative practice and judicial practice. This paper described three parts:The first part is a basic understanding on discretion standard. This part is committed to solve the theoretical basis of discretion standard, including the basic issues of the administrative discretion, the basic content and extension of discretion standard, also, the legitimacy of its existence. This section which discusses the purpose of discretion standard on the background in and out of the area, is committed to acknowledge the earth which discretion standard coming into being.The second part is the main part of the paper, which focused on the effectiveness of discretion standard. This part is committed to describe the function classification of discretion standard, the scope, the levels of it, too. The point of this part is measuring the impact of the administration justice which is caused by the discretion standard. The discretion standard in the region is different from the one in extra-territorial. Within the discretion standard rooted in the basic administrative law enforcement practice, we cannot deny their external validity.The third part is some practical exploration of the effectiveness of discretion standard. In this part ,we can discuss the circumstances under which the discretion standard should be obeyed and under which can be escaped. In addition, this part also explores in the supervision mechanism of the discretion standard.