The Discretional Power Of Administrative Law Enforcement And Its Administrative Control

In modern society, administrative discretional power is indispensable to the implementation of public administration. But if the effective control of this right is absent, the discretional power of administrative law enforcement is apt to be expanded improperly and abused, thus constitutes a threat to the public management and the essential justice of the law. So it is urgent to explore a way to standardize and control the right of the administrative discretion, so as to improve the efficiency and flexibility in the public management while be in accordance with the purpose and intention granted by law at the same time.The first part of this thesis introduced the relative concepts of the discretional power of administrative law enforcement. First, the basic theory of the administrative discretional power is reviewed. The concept of administrative discretional power was first brought up by German researchers. Though there are different attitudes towards the function and the principle rules of the administrative discretion, the researchers in the field always have agreement on the definition of the concept: It is a"free"power for government agencies to execute the proper right of discretion according to the purpose and the intention of law, under the situation that the enactive terms is not precise or detailed enough to treat the particular cases. The right of administrative discretion plays an important role in the field of public administration due to the advantages such as overcoming the limitation of the enacted law, improving the efficiency of public administration, realizing the justice of the law and meeting the need of public management. Second, in this thesis, the characteristics of the implementation of the right of administrative discretion are described and the certainty and the inevitability of the existence of such a right in the public administration, especially in the business administration, are also analyzed. In modern China, because of the inherent regional difference in culture and economic developing level, it is impossible for the legislators to predict all kind of cases and make the precise and detailed legal terms in advance for the business administration agencies. So it is indispensable to grant the"front line"decision makers proper right of discretion. But such right of discretion should be under supervision of both the legislators and the public. It must be in accordance with the fairness and the reasonableness of the law and the public service.In the second part of this thesis, the author examines the current exercise of industry and commerce administration discretion in China and summarizes the characteristics of the discretional practice: the expansion of this right is becoming inevitable; but due to the absent of constrains from authorities and self-discipline of the"front-line"decision makers, the discretionary power is abused and become an excuse for some law executors to obtain improper profits.The third part of this thesis discusses the possible measures to control the discretionary power in the following five aspects: first, practical rules should be established to judge the impartiality, fairness and equality of the discretionary decisions and these rules should become an important criterion for the promotion or demotion of the"front line"decision makers. In other words, the law executors should be responsible for their discretionary decisions. Second, the current system of hearing of witness should be improving. The whole process of hearing of witness should be"transparent"to the applicant. The conclusions of the hearing of witness should play a decisive role in the following execution procedure. Third, the evidences of the discretionary decision should be written-declared to the public. Fourth, the publicity of the information concerned to discretionary decisions should be impulsive to the administration bureaucracies. Last, applicable standards of the discretionary decision should be established and declared to the public.