Research On Judicial Review Of Administrative Discretion Power

The power of administrative discretion is a core content of modern administrative law. With the rapid development of social economy and technology, the power and range of the government to organize and adjust social life keep expanding, the power of administrative department also expends with it. But maybe this power is at the risk of abuse. Modern administrative is gradually developing forward when the power of administrative discretion continues expending and the control of this power is gradually strengthened. Judicial review is an essential and effective means of controlling the administrative discretional power in every country.The legislation department, academic field and judicial field basically take a positive attitude towards judicial review of administrative discretional act. But they have different opinions on which principles should be taken.In the process of our country's legislation, legal review is the most important principle, and reasonable review is a subsidiary principle. But this principle of legitimacy is a kind of formal legal review, as well as a formal comprehension of the meaning of legitimacy. The legislative department thinks that in the extent of administrative discretion power, only reasonableness and unreasonableness are involved in, legality and illegality have nothing to do with it. Apparently this view isolates the principle of legitimacy from the principle of reasonableness, and it is the root cause of the difficulties now judicial review faces.The academic field brings up the view that reasonable review should be insisted in judicial review. This view also ignores the dialectical relation between the principle of legitimacy and the principle of reasonableness, not realizing the administrative discretional act which offends the principle of reasonableness badly is actually illegal.This article makes an explanation on the concept of legality regarding the principle of carrying on real legal review on administrative act, and declares administrative discretional act that goes too far against the principle of reasonableness is actually illegal.This article does not agree with reasonable review, but approves of referencing to the specific standard of the principle of reasonableness and this standard can be used to judge administrative discretional act is against the law or not. As to the problem of severely breaking reasonableness or not, this article holds rational people's standards.According to the principle of carrying on real legal review on administrative discretional act, administrative litigation or negotiation can be taken to those acts which don't desperately offend the principle of reasonableness, but indeed go against the law.