Concerning Regulation And Control Of Administrative Discretion

The right of administrative discretion is a kind of power that administrative departments owns as the main administrative enforcement which can judge and choose to take the most appropriate behavior patterns and content according to the specific conditions and their own will.It is an important content of the administrative power and it is also the most widespread and most often behavior used by the administrative organization in the administrative law enforcement. Some scholars even think that the administrative discretion is most remarkable and unique part in administrative power. Indeed, administrative discretion must exist for the need of administration. But at the same time,due to the too much freedom of administrative discretion, may often be beyond the exercise and even abuse the delegated power in practice,and it could do some damage of the administrative relative person’s legitimate rights and interests,so it is an important source of administrative dispute between the administrative organ and the relative person.The right of administrative discretion is the core of the administrative power,it is also the main form of administrative law.Due to the special nature of administrative power,the right of administrative discretion widely exists in the whole administrative management,it becomes the symbol of the development of modern administrative law at the same time.In order to play the administrative functions better,improve administrative efficiency,fully adapt to the modern administrative management requirements and realize administration according to law completely,we must expand the scope of administrative discretion.Under such circumstances,some effective regulation of administrative discretion will prevent its beyond exercise,give up exercising or delays the exercise etc.But sometimes administrative law enforcement officers are not only beyond exercise, abandon exercise but also do harm to the administrative relative person’s interests seriously,it is a threat to administration by law,this means a abuse of administrative discretion,and the adjustment is not enough.So we must strengthen the control of administrative discretion,the morden administrative law is growing up while administrative discretion continuously extends,adjusts and controls itself.The control of administrative discretion is through a variety of means to achieve,in order to prevent the disorder and out of control is not only the important research topic in the field of administrative law,but also the problem of contemporary administrative management which needs to be solved immediately.This paper is divided to four parts which do a more comprehensive analysis of administrative discretion.The first part mainly start from the concept of administrative discretion, separately analyzed the opinion of domestic scholars of the concept of administrative discretion.then analyzed the understanding of the concept and development which foreign scholars and experts did on the administrative discretion,in order to perfect accord with the characteristics of our country’s administrative discretion on the concept of innovation idea through drawing lessons such as theoretical knowledge and the existing achievements from some countries that legal system is developed and doing the full integration of current administrative discretion of China.In the first part,the author does some summarize and review on characteristics problem of administrative discretionary power which has laid down the foreshadowing as the depth of the analysis of the administrative discretion. The second part, the author elaborated the inevitability of existence of the administrative discretion right in our country from four aspects, in order to understand better the author turn two or three points into one point that can make the structure more compact, mainly include:first, modern social and economic development has provided favorable conditions for the administrative discretion,second,administrative right itself continues to grow that has laid a foundation for the existence of administrative discretion.Third,the correct enforcement of administrative discretion effectively compensate for the deficiencies of existing legal norms which explain the inevitability of existence from administrative discretion of the role. This point is also the soul of the inevitability of existence.In the third part,it is some adjustment of administrative discretion right, this is some of my innovation, the administrative discretion has the special function and different roles from other rights,but the exercise of the administrative discretion right will also exist many problems in real life,and we need comprehensive adjustment in this regard.The author respectively analyse small problems can be better solved durning administrative law enforcement officers do the exercise of administrative discretion from the adjustment of the reasons, ways and purpose. But if it is difficult to change the negative status quo in the adjustment of the situation or if soft adjustment cannot make administrative law enforcement officers convinced, that means forcibly control of administrative discretion. For this reason the author arranged the control of administrative discretion in the fourth portion.we do some deep analysis on the control of administrative discretion, as the administrative discretion administrative discretion is abused, lay the foundation for the realization of administrative rule of law,better protection of the legitimate rights of the administrative counterpart’s needs and further improve the level of law enforcement of administrative law person,then the author also introduces measures of control of administrative discretion, for example, in the aspect of legislation, administration and justice is the most effective way to control administrative discretion. We know better that perfect the administrative right of discretion system is not a short period of time to complete, this not only needs the consolidation of basic knowledge,but also make the constant innovation and improvement, in order to better guide the administrative organs and administrative law enforcement personnel to use to practice,more theory need academia to explore.