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Study on the Administrative Discretion Based on the Theory of Deliberative Democracy

Author: LuDan
Tutor: WangBaoZhi
School: Hebei Normal
Course: Constitutional and Administrative Law
Keywords: Administrative Discretion Deliberative Democracy Administrative Procedures
CLC: D912.1
Type: Master's thesis
Year: 2012
Downloads: 82
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Abstract


When the administrative organs exercise discretionary power, it is in a leadershipposition mostly. But in recent years,due to multiple factors,include the pressure of practicaladministration issues, social harmony concept, deliberative democracy theory etc, deliberativegovernance to deal with cases model is gradually formed in the administrative department andthe receiver. The traditional regulation of the power theories is basic on the unilateral acts ofthe administration discretion and with simplex control manner. So they are not enough tosolve both the practical and the theoretical problems.So it is extremely urgent to review on the traditional administrative discretion regulationtheories and the traditional study approach of the administrative law. At this time, due to somuch superiority, such as superior to the traditional democracy theories, plurality ofadaptability and agreement with kind governance, deliberative democracy theories willcertainly become the theories of administrative discretion’s new choice. It can thus beconcluded that burning in deliberative democracy theories,modern administrative proceduresby its virtue of independent is not a bound on administrative discretion, but the two can keepin a state of commensalism,and it can even be said that, the modern administrativeprocedures are the protection mechanism of the theories of deliberative democracy. It will notonly break the though that administrative procedure is the tool of the administrative discretioncontrolling,but also open a new try of researching on administrative law. What’s more, itopen up a new thought to breakthrough the traditional binary opposition between theadministrative power and the citizen right, at the same time. Based on the theory ofdeliberative democracy, the consultative administrative discretion is a product of the globalinstitutional change in the field of administrative law, the consultative process are the productof deliberative democracy theories in the program field.The paper is divided into four parts:The first part is the introductory paragraph, it includes: basis and significance ofdissertation, focal points、 difficult points and main innovative points, research status at homeand abroad, research ideas and methods. Among the number, I find that the articles ofdeliberative democracy in the field of administrative discretion field were rather less, almost no one have been summarized the definitions of consultations administrative discretion.The second part is the analyzing of the performance and the reasons for the run failure ofadministrative discretion regulation theories. The administrative discretion has its emergingand existing origin; the creation of administrative discretion is based on the demands ofindividual justice and the results of creative administration. As the core of the administrativepower, administrative discretion is naturally apt to become the tools for people to seek privateinterest or illegal interest. Therefore, it went through the Process from the street restraint tothe reasonable control. Although the two processes are different between the existence ofadministrative discretion and the attitudes of how to regulate, but in fact, they are both theregulatory paradigm of power to control the powers.Holding a unilateral act of power andunable to meet the interests of both the demands of the administrative department and thereceiver. the law system construction under this theory of power control will not meet thegradually rise of civil society, increasingly positive public participation in governmentactivities and the gradually increased citizen awareness of individual rights. When facing thedual pressures both from theoretical research and real practice, the reforming of the traditionalresearch paradigm and the interactive platform should be established between theadministrative department and the receiver urgently.The third part is talking about the model for regulation of administrative discretion inChina. The concept of consultation administrative discretion was proposed. It is producedfrom the deliberative democratic system, combination of procedural justice theories andspecific administrative practice. the deliberative democracy establish in the field ofadministrative discretion,and take it as an object is feasible and legitimate, The theoreticalbasis of its legitimacy from the inter-subjectivity,and it’s realization basis from the"consultation" process. Through the analysis,the nature of consultations administrativediscretion is a kind of consultation process、The authority of subject of administration isunidirectional. The form of expression is actor’s pluralism communicative action. It’sdepended on its harmony with the contemporary China’s political, economic, legal andcultural whether the consultation administrative procedures with so many advantages can besurvival or not. Through the analysis, we can obtain that, although it can survival, still manychallenges should be overcome. The fourth part is the suggestion of the consultations administrative discretion in China.In this part of the article, I will explore four aspects to explore the implication of deliberativedemocracy theories in China. they are co-existence aim、Precondition、expression vector andsupport. Consultations administrative discretion of the system design goal is to achieve theultimate aim of good governance. in order to achieve this goal, emphasis on those potentialadministrative subjects, such as the citizens, intellectuals, Public interest lawyers andnon-governmental organization are necessary. Modern administrative procedures with itsjustice, diversity and compatibility qualities is hormonally bound with consultationadministrative discretion, In addition, Consultation administrative discretion is notindependence from government rule. It’s success needs the cooperation of legislature, judicialauthority and administrative organ, and the well-intentioned accepted of administrative organis indispensable.

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