The Policy And Its Judicial Review As Influencing Facters Of Administrative Discretiong

Administrative discretion has a very important position in the theory and practice of administrative law. Professor Davis said in his "discretionary justice" that Administrative discretion is the source of life for the administrative process. In recent years, a large number of scholars have carried out a large number of in-depth studies of administrative discretion. In recent years. These studies are not limited to the concept of struggle, but also deeply to each field, such as administrative discretion and administrative contracts, administrative discretion, judicial control, self-restraint of executive authorities, discretion benchmark and so on. In fact, the status of the policy is not lower than the administrative discretion, although they are different concepts. Executive authorities have developed many policies in the administrative process. The impact of these policies on the implementation of administrative law, especially on operational process of administrative discretion. Administrative law scholars should give considerable attention to other rule elements in the administrative process, although the main object of study of administrative law is the rule of law.This article mainly studies what the policy means in administrative law through the analysis of the policy in the form and in the form of law. The concept of policy in policy Sciences, contains all legal norms and the behavioral rules drawed up by national authorities. But for the Administrative law, from the perspective of the distinguish between policy and law, because they do not have the executive, legislative organs of the legal interpretation of the rules and regulations, which are all non-statutory interpretation. And thus they do not have the status of the source of law on the administrative law or are not legal normative documents; the interpretation of the laws, regulations, the outside than regulations enacted by the executive, legislative, administrative authority does not have the legal status of the judiciary either, except for the regulation. The regulatory documents without source of law nature do not have Mandatory effect on court.. Of course, in addition to other regulatory documents, the policy also includes administrative organs, the release of other documents not specific to public.This article adopt the view of unified discretion, referencing scholars’ dissertation, that explaining uncertain legal concepts also belong to administrative discretion. Administrative authority can not manage social affairs based on the policy, because of the requirements of the principle of administration according to law. But administrative discretion provides a channel through legal barrier to reach the administrative tasks for the executive authorities. The policy has two effects:(a) solving policy issues, and achieving administrative tasks;(b) constructing and constraining the administrative discretion deriving from the legal authorization, which dependent on the nature of the policy as tools, authority, consistency and professional knowledge to some extent. Administrative discretion affected by the policy most likely generate by two issues:discretion of laziness and policy circumvention. Lower administrative organ is likely to rigid policies, ignoring the proper meaning of discretion and lacking of consideration of the specific situation in the case and the individual circumstances of the administrative counterpart which may lead to injustice. It is more serious when the policy itself is a rigid policy. But on the other hand, If breaching of policy without legitimate reasons in the exercise of discretion, the executive authorities would be contrary to the principle of equal treatment and legitimate expectations, which constitutes a discretion abuse and damages relative interests.Judicial authorities conducted a limited review of administrative discretion, and that is to examine whether defective and illegal. The essence of judicial review of administrative discretion affected by the policy is to review the if policy provide Sufficient and reasonable grounds. Therefore the court is inevitable to depth examine the internal structure of the policy, whether the contents of the policy is legitimate or reasonable. China’s Supreme People’s Court made clear the standard of the abstract administrative acts review is legitimacy and rationality in seminar on the applicable legal norms on the trial of administrative cases. But judicial practice often merely examine its legitimacy. The reason may be in the judicial respect. On the other hand, it may also base on the actual position of the courts in our constitutional practice.