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On the Legislative Controlof Administrative Discretion

Author: WangJian
Tutor: KangZhenHua
School: Yanbian University
Course: Constitutional and Administrative Law
Keywords: administrative discretion the legislative control legal interpretation public participation
CLC: D922.1
Type: Master's thesis
Year: 2011
Downloads: 70
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Abstract

With the rapid increase of social affairs and the day by day complexity of social life, administrative rights of the government are expanding continually. At the same time administrative discretion rights are also expanding. While executive management is becoming professional and technological. The role of government transform from a negative night-watcher to active service administration. And the traditional theory of controlling administrative discretion rights strictly has to admit the wide existence of administrative discretion. Just like what William Wide says, modern domination demands free administrative discretion as much as possible in a wide range. And the centre of theoretical research is turning from strict limitation of administrative discretion rights to how to effectively exercise administrative discretion rights so as to promote the realization of personal rights and public profit. Administrative discretion is the inevitable result of social development and the production of legalization process. But administrative discretion is also a thing with two sides; on the one side, it can satisfy the demand in the practice of laws to the justice of cases with a highest degree so as to increase the administration efficiency and adequately mobilize the attention of the administration staff who can make better service for the public. The use of administrative discretion makes up the weakness of law terms, such as limitation and delay and realizes the value of law. Thus we can say that administrative discretion is the necessary supplement and inevitable demand. On the other side, because administrative discretion is the free discretion space endowed to administrative subject by law, to the administrative subject of limited sensibility, misuse of rights is unavoidable. The administrative discretion must lie under legislation regulation. The author thinks that it is rather important to carry out legislation regulation on administrative discretion, as legislation regulation is not only be regulated from the origin, it is also the right origin of administrative and judicature regulation and a solid line of defense to keep away misuse of administrative discretion. At present the comparative weakness of legislation regulation in our country and the incompleteness of relief stress the legislation responsibility as beforehand regulation means and makes it become the most effective and feasible way to govern the administrative discretion from outside. "In any occasion, as long as the government is existed, legislation right is the highest power, any social members or the people in the society and all the other powers all get and belong to it.With comparative analysis in Germany, Britain, Japan and China of the control of administrative discretion by law, we can study the advanced concepts and provision, so as to consummate our legal system. First, reinforce the normalization and unification of legislation, strictly authorize, and consummate the relevant legal and supervisory system. On one hand we should adequately make the full use of the law, on the other hand the legislature should make detailed explanation of indeterminate construct, in order to reduce the arbitrary nature of administrative discretion. Second the legislature should bring its function of supervising regulations into full play, abolish the antiquated law, and handle the contradiction among regulations. Third, we must refine the legislative provisions of the responsibility because of the illegal abuse of administrative discretion. The last but not important, we should take measures to promote the public participation. Whatever we do is in the cause of establishing a system of competition among different power, so as to recover the defect of inflexible sake and formality. Legislative control of the control of administrative discretion is only part of the system; it needs an effective coordination with other measures. No matter what kind of measures was taken, we should see that the administrative discretion play the positive role in social development, and should not give up making renovations for fear of trouble. The control of administrative discretion is enormous and complicated project, it needs a long time. As Mr. Lu Xun said, even hard, but also we need to do; more difficult, the more demand to be done. Reform do not always have favorable winds in your sails.

On the Legislative Controlof Administrative Discretion

Abstract

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