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On the administrative discretion of the judicial review

Author: ZhangFengHan
Tutor: WuWeiJun
School: University of Electronic Science and Technology
Course: Constitutional and Administrative Law
Keywords: discretionary power judicial review extension legitimacy rationality
CLC: D922.1
Type: Master's thesis
Year: 2010
Downloads: 122
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Abstract

The relationship between judicial power and executive power is the kernel of administrative law research. Such cases as abusing administrative discretionary power happened some times since the 20th century, with the expansion of administrative discretionary power continuously. It seems to be more necessary to realize supervision and control of administrative discretionary power by means of judicial review. Legal term generally agreed that there are many problems in urgent need of further study about administrative discretion problem both in theory and in judicial practice, in our research. However, the study of correlation theory on it is not in-depth by now, and the number of scholars who specialize in the judicial review in administrative discretionary power is still small, besides, part of the scholars believed that judicial power could not intervene discretionary power of administration and it is unnecessary for us to study the judicial review. The correlative legislation is more illegibility and wider on the requirements of the content, exertion condition and exertion processes of administrative discretionary power. Besides, the legislation eliminates most administrative discretionary power out of judicial review. Even if some discretionary power is regulated, the review of them is only in the aspect of validity, and the principle of reasonable review has not been regulated clearly. In judicial practice, the court usually misunderstands the concept, extent and depth of administrative discretionary power, because of the absence of support of legislation and theory studiesThis article focuses on the study of judicial review of administrative discretionary power. Concretely speaking, judicial organs accept parties` requests who believe their legal power have been infringed upon by administrative discretionary behaviors of administrations according to legal procedure. Firstly, this paper starts with the discretionary power research. Based on this, it expounds its concept, characteristics, research value, and discusses the concept, significance of judicial review of administrative discretionary power as well as the theoretical basis of judicial review in detail. The involving problems of discretionary power are so many, this paper mainly studies three aspects of extent of judicial power, legal examination, reasonable review. In the aspect of extent, extraterritorial correlative countries as reference, based on analyses the existing problems in our countries correlative regulations, I suggest to reform and perfect, and believe we should enlarge the extension of judicial review through changing the system of legislation, regulating things eliminated by judicial review, strictly restricting the extension of administrative final ruling and so on; in legal examination, I mainly discuss the basis of review, and suggest adding basis of statute law and bring unwritten law into these basis; in reasonable review, I think we should establish precedent institution and rational principle as soon as possible in judicial review of administrative discretionary, and advance the legislative technique, make correlative legislative clause clear.

On the administrative discretion of the judicial review

Abstract

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