| Judicial review of administrative discretion in payment have many problems,such as ‘the lawsuits have difficulties to enter into reviews of substantive matters’,‘the court is hard to examine reasonable review of politic documents’ and ‘the pay duties of administrative organs are unclear’.The result is that majority of lawsuits related to supply administration are rejected.Under the background of expanding payment administration,solving the problem that the judicial review of administration discretion in payment be too modest is significant to guarantee and improve the people’s livelihood.Therefore,it is necessary to discuss how to adjust and improve the path and method of judicial review of administration discretion in payment so that giving better play to the supervisory function of judicial discretion over administrative decisions.The paper is divided into four chapters.The theory of payment administration is constantly developing and changing,which takes giving benefits to citizens as the core and is restricted by the current economic development level.The administrative discretion in payment is framed as that administrative organs set up supply conditions or procedures by public or private law administrative mode in order to provide public infrastructure,social security and fund subsidy with survival care as the core and in line with the national people’s livelihood security objectives.The administrative discretion of payment has more discretion space in the construction of legal norms.The theoretical classification of administrative discretion in payment can be divided into three kinds: the rule discretion by releasing legal document,the enforcement discretion in the way of public law and the enforcement discretion in the way of private law.They may cause threat to the parties’ rights and interests or public interests.So it is necessary to emphasize the supervision role of judicial review on the abuse of administrative discretion,the vague boundary between public and private law caused by using administration contract or private law administration as payment,and the improper use of administrative discretion to affect the rights and interests of the parties.The theoretical administrative discretion in payment can be accordingly show as three types in judicial practice: ‘policy-type discretion’,‘agreement-type discretion’and ‘compound effect-type discretion’.Overall the administrative discretion of payment is weak in judicial review.The main reason lies in the following: ‘the lack of administrative legislation on payment’,‘the court’s inability to examine the rationalityof the policy’,‘the vagueness of responsibility of payment under public and private law administration’,and ‘the influence of extralegal factors on judicial review’.So we must puts forward some methods to perfect the judicial review on the policy-type discretion,the agreement-type discretion and compound effect-type discretion.For policy-based discretion,the legislature should complete administrative discretion to explain the reason system,and the court should take one kind of review method to judge the process of administrative policy making or change.When it necessary,the court can also put forward suggestions on policy making,change and implementation in the judgment,so as to play the implicit function of focusing on administrative practice and promoting the improvement of administrative system and practice.In terms of agreement type discretion,it is necessary to make sure that the administrative agreement has the nature of public law,so as to continue the follow-up review.The main content of the review will be the legality of the agreement.When there is no problem of legality,the rights and duties(obligations)of the administrative subject and the relative person are determined according to the agreement,and the court can make a specific and explicit payment judgment,requiring the administrative organ to pay according to the agreement.As for compound discretion,the legislature should expand relative scope of lawsuit.The judicial review should make this clear and determine the definition standard of the administrative subject’s obligation to pay in these matters.In the judgment result of compound discretion,it is still necessary to consider the respect for the administrative organ’s payment discretion and the effect of administrative execution,and it is advisable to cancel the order. |
