Study On The Setting In Administrative Discretion

Due to the theoretical debate on the effectiveness of the escape clause,coupled with the fact that in recent years,the administrative organs in China have been negligent in applying the escape clause,abusing the escape clause,and mechanically applying the administrative discretionary benchmark,the academic community has begun to pay extensive attention to the setting and application of the escape clause,hoping that by setting the escape clause in the text of the discretionary benchmark,based on the special situation of each case,the substantive rule of law goal of "It is hoped that by setting the escape clause in the text of the discretionary benchmark,based on the special situation of each case,the objective of the rule of law can be achieved.Based on the above issues,this paper focuses on the following aspects.Firstly,by analyzing the basic theory of escape clause,it is believed that escape is the act of the administrative organ not applying the discretionary benchmark based on the right of escape,and the escape clause is the right of escape has a basis in law-making,and on this basis,the internal and external effects of the escape clause are further discussed,aiming to achieve a preliminary overview of the escape clause.Through theoretical tracing and comparative analysis,it is pointed out that the setting and application of the escape clause has the legality and realistic demand,and is a return to the essence of administrative discretion and has its own justification basis.Secondly,on the basis of the basic theory,an empirical investigation is conducted on the setting and application of escape clauses in China based on the text of escape clauses,application rules,punishment cases and judicial cases,and it is believed that the setting rules and application rules of escape clauses are missing and imperfect,resulting in the phenomenon of negligence and abuse of escape clauses in administrative law enforcement.Again,in view of the above problems and root causes in the application of escape clauses,on the basis of rational view of the functional value of escape clauses,the rules of setting and application of escape clauses should be improved: at the level of setting rules,there should be rules of necessity,general rules,procedural rules,and rules of evaluation and updating to ensure the proper mixing of escape clauses and administrative discretionary benchmarks;at the level of application rules In the level of application rules,we should improve the rules of application of escape clauses in the whole process of ex ante,ex post and ex post.In summary,this paper analyzes the basic theory and practical dilemma of escape clause,and proposes the corresponding improvement path for the existing problems.It is hoped that through the discussion of the theory of escape clause and the examination of the actual setting and operation of escape clause,a set of operational and guiding rules for setting and applying escape clause can be constructed for the administrative law enforcement officers in China,so as to strengthen the legitimacy and effectiveness of the escape clause system.