Research On The Administrative Discretion Benchmarks In Judicial Review Practice

The limitation of administrative discretion is not only a common issue in academia,but also an issue of close concern to the public.The administrative discretion benchmarks are the guidelines formulated by administrative branches to prevent arbitrary administrative discretion,and they have the function of guiding the exercise of discretion in an appropriate manner.At present,there are already a lot of discretionary benchmarks in China,which can be said to have been spread in every aspect of our life.While they are widely applied,the question turns to how should we supervise the benchmarks to better limit administrative discretion.In addition to the internal self-monitoring of administrative branches,the choice of judicial review to supervise them is a good solution.But because of the special nature of the administrative benchmark,its legitimacy and effectiveness are still controversial.If a benchmark is to be subject to judicial review,it should first be clarified what its effectiveness is.Secondly,out of respect for the administrative power,the courts in judicial review practice often choose to give different degrees of respect to the administrative decisions made by the administrative authorities based on the discretion benchmarks,which in individual cases are characterized by inconsistent review standards and attitudes as well as different degrees of review intensity,thus there is no uniform practice and it is easily influenced by the subjective thinking of judges.Therefore,there is an urgent need for us to establish a universally applicable review model in order to achieve uniformity in the judicial review of administrative discretionary benchmarks in practice and to better limit the exercise of administrative discretion.Based on this,this article takes the administrative discretion benchmark as the starting point,starts from the review attitude and way of the court in judicial review practice.After analyzing a large number of cases and combining the relevant domestic and foreign theories and experiences,it aims to put forward suggestions for the construction of the judicial review mode of the administrative discretion benchmark.Based on the above purpose,this paper is structured as follows:The first chapter introduces the background and development trend of the administrative discretion benchmark system in China.At the same time,it sorts out the theoretical and practical significance of the research,conducts a domestic and foreign literature review of relevant research results,and clarifies the shortcomings of the existing research,and puts forward the research ideas and originality of this paper.The second chapter focuses on the legitimacy,institutional basis and effectiveness of administrative discretion benchmarks.It analyzes and compares the practices of different countries and the strengths and weaknesses of different doctrines,puts forward its own opinions,and revises the "one-way theory",pointing out that it is the most accurate doctrine reflecting the effectiveness of administrative discretionary benchmarks at present.Lastly,it elaborates on the institutional space and significance of judicial review of the administrative discretion benchmark in China..The third chapter analyzes the cases in judicial review practice from a macroscopic point of view,and examines the way judges handle cases involving administrative discretion benchmarks from a microscopic point of view through judicial decisions at the grassroots level,and summarizes the problems of inconsistent review attitudes,standards and intensity of review in the review of administrative discretion benchmarks by courts.It also analyzes the reasons why courts choose to avoid mentioning the benchmarks and escape from applying the benchmarks due to the obligation to consider individual circumstances.The fourth chapter focuses on the two most important review situations faced by the courts for administrative discretion benchmarks,the achievement and absence of a model of review of administrative discretion benchmarks as the basis and object of review,and points out that there is an urgent need to establish an intensity of review that varies in form and severity and an objectivity of standards at the substantive level.in China.The purpose of the fifth chapter is to address the current judicial review practice of China’s judicial review model,combining the excellent experience of foreign countries and the principles of administrative law,to put forward specific proposals for improving the judicial review model of its administrative discretion benchmark for each of the two review situations.