Research On Discretion Benchmark System Of Administrative License

At first,China’s discretion on administrative acts was mostly concentrated in the field of administrative punishment,and there was less research on other aspects.Later,with the establishment of maritime administrative licensing discretion by the central government,all kinds of administrative licensing discretion have flourished from the central government to the local government in recent years,resulting in the benchmark of administrative licensing discretion.Discretion benchmark is the quantitative standard to determine a variety of choices,and the choice space to compress and reduce the effect of law enforcement.For the discretion with large discretion space and great difference in discretion consequences,we can take the lead in formulating the discretion benchmark,so that the discretion can be restricted to a greater extent.According to the general theory of administrative licensing discretion benchmark,the problems encountered in the theory and practice of administrative licensing discretion benchmark and the causes,and finally the writing ideas of the measures to be taken to solve the problem of administrative licensing discretion benchmark.By analyzing the characteristics of administrative licensing discretion benchmark system,administrative licensing discretion benchmark is very different from administrative punishment,which has a relatively distinct legal personality: from the perspective of technical structure,The technical structure of the exclusive license discretion benchmark is "plot quantification + plot optimization";From the perspective of openness,the discretionary benchmark of administrative license is not only the standard of administrative subject examination and approval,but also the preparatory standard of administrative counterpart.Its internal and external functions are to improve the openness of administrative license.These characteristics and functions also fully reflect that the existence of administrative licensing discretion benchmark is necessary in practice.At present,although the development status of China’s discretionary benchmark from the central to the local level is a thriving situation,there are many theoretical disputes and practical problems,such as the dispute over the application of the discretionary benchmark of administrative license,the risk of setting escape clauses,the lack of democracy in the formulation process,the prominent phenomenon of "symbolic legislation",the arbitrary formulation procedures,the great differences in the local legislation of discretionary benchmark,and the inadequate judicial review.From the problems existing in the system itself to the implementation problems existing in the process of practice and the problems in the process of judicial review,it shows that the existence of administrative licensing discretion benchmark system still has aspects that need to be solved.After clarifying the existing problems of the administrative license discretion benchmark from various angles,the author deeply analyzes the deep-seated reasons for the above problems,analyzes the legitimacy of the administrative license discretion benchmark from the rationality and legitimacy of the system level,and analyzes the imperfect legal provisions from the practical level The lack of accountability mechanism,the control interaction of various supervision modes in judicial review and the reasons for the effectiveness of licensing discretion itself explain why there are many of the above problems in the benchmark system of administrative licensing discretion.Based on the above problems,in order to comprehensively build China’s administrative licensing discretion benchmark system,we must take a series of corresponding measures.Based on the theoretical and practical experience,we believe that we can start from three directions: the following measures should be taken: first,determine the scope and subject of administrative licensing standards,and scientifically design the applicable principles of "plot refinement" and "effect standardization";Second,we should improve the legal procedure,from the formulation to revision of the benchmark,make full use of the strength of all sectors of society,establish the hearing procedure of the discretion benchmark of administrative license,expand the degree of openness and mass participation,and improve the awareness of the masses;Third,introduce the discretion benchmark of administrative license in judicial review,and make special institutional arrangements for it.On the basis of examining the administrative license,the court has the right to examine both its legitimacy and its rationality.