Research On Standard For Administrative Discretion

Even in the whole jurisprudence, discretion is a core problem.Theory is based on practice and practice with theory as guidance. In the 1980s, Chinese scholars have paid close attention to the problems of administrative discretion, and since then, administrative discretion obtained the considerable development. But until twenty years later, the practical significance of the theories of administrative discretion becomes to appeared. In 2004, the system of administrative discretion standard was made firstly by the police bureau in Jinhua, after that, variety of "discretion standards" appeared everywhere in our country. The system of administrative discretion standard is taken in administrative practice commonly. So, I can say that the administrative practice gave a positive respons to administrative discretion theory. Scholars discuss a lot about administrative discretion. Overall, this reflect the administrative organs adhere to enforce the law honestly. And this has had good results in the society. But, what's can't be neglected is, controversy around the system is never end up, especially about its concept, essence, validity and so on. According to the practice, author think the jurisprudence questions a lot. By comparing administrative discretion standard and laws, administrative interpretation, administrative provision, author defines the concept of administrative discretion standard, make the essential clear. Administrative discretion standard is administrative interpretation of the concrete forms, belong to other regulatory documents in the enforcement of administrative authority, is the process of implement laws and regulations, in order to realize the law and formulate normative documents. At the same time, the author also gives the legality of administrative discretion standard. I believe that administrative discretion standard in our country has a legal status, but in judicial process, does not have legal effectiveness. Administrative discretion standard in administrative enforcement process, plays an important role. It limits administrative discretion, and make up other means'shortage. It wanders between fact and the stability of the legal norms, keeping the statutes advancing with the times. It is the test-bed for legislation. Any power might abuse. So we have to pay attention to supervise on administrative discretion standard. Due to the special position of the standard of administrative discretion, the author thinks that shall supervise in four ways:legislation, judicial, administrative and personnel. Legislative approach mainly include restricting the makers, regulating system of recording, regulating system of repeal three aspects. Judicial approach means the obiter check to abstract administrative action. Personnel approach means value the participation of personal to achieve the goal.