Research On The Standardization Of The Administrative Licensing Discretion Benchmark System

The life of administration lies in discretion,and administrative discretion is a necessary means for administrative organs to actively exercise social management functions,and the shadow of administrative discretion can be seen in almost all administrative acts.Administrative discretion has a positive effect on avoiding the mechanical law enforcement of administrative entities and the realization of justice in individual cases,but the abuse of discretion will also lead to a series of adverse consequences such as damage to legitimate rights and interests,weakening of legal effect,trampling on judicial authority,etc.,contrary to the original intention of applying administrative discretion.Article 2 of the Administrative Licensing Law of the People’s Republic of China stipulates that administrative licensing is the act of an administrative organ granting an administrative organ to engage in specific activities after examination in accordance with law upon application by a citizen,legal person or other organization.However,the inherent deficiencies of the law make it impossible for the legislation to clearly stipulate all issues,requiring the legislation to provide comprehensive,complete,specific and detailed provisions on the conditions required for applying for and obtaining administrative licenses and the procedures for performance,and law enforcement entities can accurately and efficiently judge whether licenses should be granted in individual cases as long as they are aware of the provisions of the law,and there is a wide range of creative space in their implementation.Therefore,it is necessary to put the necessary "shackles" on the administrative discretion in order to effectively regulate the exercise of discretion.At this time,the discretionary benchmark came into being,which is essentially a constraint and regulation of administrative discretion,so that it operates in an orderly manner on the legal track.After several years of development,China’s administrative discretionary benchmark system has begun to take shape.However,most of the punishment discretionary benchmarks are used as the research object,and there is a certain degree of dislocation between the research of theory and the development of practice.In addition to the institutional construction generated by using the penalty discretionary benchmark as the test template,the development trend of administrative licensing discretionary standards is not easy to ignore due to its own characteristics.The inherent nature of administrative licensing also gives it a legal personality different from that of administrative punishment in terms of technical structure and openness.By combing the texts of the benchmark system at the central and local levels,and examining the practice of benchmarks in typical provinces and municipalities such as Guangxi,Zhejiang,Hunan,and Guangdong,the author found that there are many problems in the practice of discretionary standards,such as different subjects and unclear authority for formulating benchmark texts,lack of democracy in the formulation process,rigid and rigid formulation technology,and many barriers.The norms of the administrative licensing discretionary benchmark system need to be improved from different levels,combining China’s rule of law elements and local resources to clarify the authority and subject of the formulation of administrative licensing discretionary standards,and at the same time introduce public participation and pay attention to the disclosure of the benchmarks in the whole process from the formulation to revision of the benchmarks,and expand and extend the traditional technical construction model based on its own legal personality.