Discussion On The Abuse Of The Administrative Discretion And Its Legal Controlling

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 administrative discretion extensively exist in the field of the administration, and become important sign of the contemporary development administrative law too. The modern administration law is exactly developed in the process of the enlargement and the control of the administrative discretion. 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 existence and enlargement of the administrative discretion ,on the one hand, meets the needs of the development of modern society and the promotion of the administrative efficiency, on the other hand, provides a condition to the abuse of the administration, the abuse of the administrative discretion must infringe upon the legal rights and interests of the opponents of the administrative person and then become the threads to the administration of the state according to law. Therefore, the administrative discretion must be controlled.In order to prevent the administrative discretion from being abused, all kinds of measures must be taken, which has been not only one of the important tasks of the administrative law but also the problem of the administration needs to solve. Accordingly, deeply researching the administrative discretion and discussing how to properly use this power have both theoretical and practical value on enriching the contents of basic principles of the administration law, promoting the development of the administration law, maintaining the authority of the administrative organs and protecting the lawful rights and interests of the administrative opposites.This thesis takes the methods of analyzing concept, the comparative analysis, the integration of and the theories and the practice to analyze and study the control of the administrative discretion.This thesis includes four parts. First of the text introduces some elementary knowledge of administrative discretion, such as the connotation and significance, at the same time analyses its rationality and disadvantage. Second of the text analyses the representative forms, adverse influence and the reason of the abuse of the administrative discretion. In the third part, in view of comparison and borrowing, the theoretical achievements and systematical design of how to control administrative discretion in America, England and French, and the European countries is mainly talked about. Through comparing with the newly productions in western society, the instructive inspiration of how to control administrative discretion in China is to be sought out. Fourth of the text is the most important part. The author brings forward concrete opinions, advice and mend project to control and supervise the administrative discretion from three phases, such as prophase, metaphase and anaphase. While in the three phases, metaphase and anaphase are most important, that is procedure control and justice supervision.There are two innovation points in the thesis: To begin with,in terms of study angle, to study the whole process of the administrative discretion and its abuse from a angle of static state to dynamic state. Not limit at some one particular stage only. What's more, in terms of study content, to bring forward a pattern of"the whole process control", that is, from three phases, prophase, metaphase and anaphase, to control and supervise administrative discretion, to lay stress on introducing proportional principle into the phase of procedure control and introducing rational principle into the phase of justice supervision. This pattern can guarantee the legality and rationality of the administrative discretion from its birth to death.