Research On The Effects Of Administrative Discretion Standard

The generation and development of administrative discretion standard (ADS) is administrative authority's positive trial for the seeking of the justification and rationalization for administrative discretion. From the perspective of the effects of ADS, this paper demonstrates both the inner and outer validity of ADS on real application.Based on the detailed explanation of the basic concept of ADS, the first part of this paper proposes that the characteristic of ADS is a kind of illustrative administration rule. The design of ADS system aims to regulate the use of administrative discretional power. In addition, this part also presents that ADS is in compliance with Chinese Constitution and relevant law and has achieved remarkable results in reality, justifying the existence of ADS.The second part of this paper focus on the inner effects of ADS. It points that the direct object governed by ADS is its rule-maker, inferior administrative organ and public servant. On one hand, ADS should be applied with higher priority than general upper law. Justifications shall be presented in the event that inferior authorities and public servants do not apply the ADS which is rendered by higher authority. On the other hand, in case both the inferior administrative organ and the senior authority formulate ADS pursuant to the same administrative law, the conflicts of priority among the discretion standard of different tiers comes to the front. Defining the applicable rules for ADS can alleviate this problem to some extent. The ultimate solution is to restrict the rule-maker of ADS. The administrative authorities at or above provincial level is responsible to formulate fundamental rules while the county level government and its functional department develop the detail rules and regulations based on their specific condition. This not only takes account of the' "experiences rationality" from the front-line law enforcement agencies, the practical experiences and the local knowledge from different parts and agencies but also prevents ADS from being contractive and uneven when the ADS is developed by a broader agencies.The third part of this paper concentrates on the external validity of ADS. On one side, ADS has the external effects by regulating the rights and duties of administrative counterpart through detailed administrative actions. As a result, it is binding to administrative counterpart. Its external effects include the principle of executive self-restraint, the principles of equality and protection of reliability. On the other side, ADS made by administrative agencies has very limited binding effect upon court. Many ADS in the form of normative documents are cited by judge in the reason part of the judgment only as references to measure and decide whether the administrative action is legitimate. Looking at the Supreme Court's provisions and legal practice, it can be found that the current review of the applicability of the ADS is only a kind of indirect supervision. When the ADS itself is illegal, the court can only withdraw administrative decisions based on illegal ADS in the case before it but can not declare the ADS as invalid.The forth part propose some ideas for the construction of ADS system based on the problems exposed by the real application of ADS. First of all, making ADS known to public is a prerequisite for ADS to gain external effects. By the public participation, the communication and interaction between public and the executive authorities can be enhanced. Thus the costs of compliance and implementation for ADS can be reduced. In the last, the external effects of ADS can be improved. Secondly, in the enforcement process of administrative law, administrative authorities and their public servants can avoid the application of ADS by explaining the reasons in detail in order to achieve the substantial justice, avoiding rigid, mechanical application of discretion standard. In addition, we should reconstruct the mode of judicial review of ADS in order to facilitate it as the reliable assurance for the external effects of ADS.