The Right Of Administrative Discretion And Control Method Research

Control of administrative discretion related to the vital interests of citizens, whether related to the rule of law and government can be built, so the academics their research more fully from the research point of view in terms of legislative control of administrative discretion, judicial control and administrative control of the three angles to show, then, these three aspects of the control is in fact unable to achieve a better state. From legislative control is concerned, China’s legislature National People’s Congress of authority control is always a mere formality, also granted the legislative power of the executive authorities, more effective control can not substantially; In addition, from the administrative control perspective view, based on their own limitations, their supervision of their own and its role is not ideal, the administrative reconsideration of disputes can not really substantive to get rid of contradictions, and even lead to more bad consequences. From judicial control in terms of rationality in the administrative proceedings can not be reviewed and justice to a certain extent dependent on the executive powers, subject to certain interference, there is no real judicial independence. Based on these considerations, the author proposed to the administrative discretion of extrajudicial control. Seek a more effective way. In this study the author used the method of literature review, contradiction analysis method and comparison method is used.The first part discusses the basic theory of administrative discretion, to define the definition of administrative discretion that the administrative discretion of the existence of its inevitability, based on three reasons:the discretionary power to effectively compensate for the lack of legislation, the Liberal discretionary power to ensure effective administrative efficiency, the discretionary power to maintain effective individual justice. And that control is necessary: the care of discretion there is the potential for abuse, the needs of the administrative rule of law, administrative discretion, the need to safeguard the legitimate rights and interests of the administrative counterpart, is to further improve the level of administrative law enforcement and administrative performance needs.Part Ⅱ: Problems and Causes of Administrative Discretion legal control system was analyzed, that the legislation there too general legal norms, principles, lack of effective limits of the procedural norms, many legislative bodies, different permissions that the problems of judicial control:the limited scope of judicial supervision, small content of judicial review, the standard of review rough. That the administrative supervision exist: weak administrative supervision, program confusion of administrative discretion.The third part discusses the administrative discretion of extrajudicial control, the first internal control of administrative discretion, that the necessity exists in the following aspects:Discretion in essence is a contains a subjective rational right to choose, the discretion of the Chief Technical making external control of the blind spots, the internal control mechanism is sound parliament and the executive power structure, the legal system does not sound institutional environment highlights the importance of internal control, internal control mechanisms fundamental way to solve the agency problem, the internal control mechanism is a low-cost, high efficiency control. From the following aspects:the scientific and standardized discretion, to prevent the privatization of discretion and improve the internal control mechanisms of administrative discretion; clear responsibility to implement the accountability system, so that responsibility reserved; strengthen ideological and preventive work, discretion of the main ideological and political quality; define the levels of total discretion of the principal’s personal interests and public interests; increase the intensity of the performance evaluation work. In addition to internal controls, but also the moral control of administrative discretion. Control of administrative discretion the feasibility of the following aspects:fairness and justice is to set the legislative consideration of administrative discretion, fairness and justice inherent requirement of the exercise of administrative discretion. Its way to what is it? I believe that the way to its performance in seven areas:the way of moral control of administrative discretion; strengthen administrative and moral legislation; administrative ethics to establish a scientific evaluation mechanism; sound administrative and ethical oversight mechanisms; the full implementation of the civil service in the recruitment strict quality off self-discipline; to improve the administrative body of law; strengthen job training for staff of administrative discretion; the chief subject of moral cultivation.