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Research on Administrative Discretion Standard

Author: LiuXiaoYan
Tutor: ZhouGuiDang
School: Lanzhou University
Course: Constitutional and Administrative Law
Keywords: Administrative discretion Administrative discretion basis Control technologies Administrative supervision Legislative constraints Judicial Review
CLC: D922.1
Type: Master's thesis
Year: 2011
Downloads: 112
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Abstract


Modern government does not have the administrative discretion is not possible, because no room for discretion in conciliatory, then the rule itself is unable to cope with the complex problems of modern government and modern justice. But excessive discretion is dangerous and harmful. Cancel all discretion is not possible, nor desirable. Obviously a wise choice is to strike a balance between rules and discretion. This requires a system to balance the contradiction between rules and discretion, administrative discretion benchmark is a fortune students for the actual system. The administrative discretion benchmark is formed by refining summary the grassroots administrative organs of law enforcement experience and will specify and quantify Action Standards. Standardize administrative discretion in the exercise, to stop the expansion and discretionary abuse played a role in containing discretion. Basis of the rise and development of administrative discretion, to conform to the needs of the transition period, the highlight Chief trend of the development of the rule of law. However, the current of administrative discretion benchmark in practice there are still some problems. Moreover, the basic problems of our country on the basis of administrative discretion yet to form a unified understanding of the nature of administrative discretion benchmark functions, control technology, monitoring mode, there is a lot of controversy. The first part of this article to distinguish easily confused concept, outlines the concept of administrative discretion benchmark, turn on the nature of administrative discretion benchmark functions to be discussed. The second part of the legitimacy and effectiveness of administrative discretion benchmark analysis, analysis of the theoretical foundation and legal basis of the benchmark of administrative discretion, on the legitimacy of its existence. Through analysis of the dispute on the the administrative discretion benchmark legally valid theory, it is pointed out that not only has the legal effect of the internal with external legal effect. And specific analysis of the of administrative discretion benchmark the effectiveness of the executive and the administrative relative person, as well as the effectiveness of the court. The third part focuses on the difficult problems in the benchmarking of administrative discretion. Formulate the main basis of administrative discretion to set the administrative discretionary basis whether the obligations of the executive authorities the reference grid how reasonable division of administrative discretion benchmark implementation effect of the problem. The fourth part of the problem by analyzing the reference system of administrative discretion and to learn foreign beneficial experience, proposed the introduction of the principle of proportionality and the doctrine of precedent, an explanation system and open system of the establishment of administrative discretion, and improve the system of public participation, improve the supervision of other ways to explore and improve our system of administrative discretion benchmark.

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CLC: > Political, legal > Legal > Chinese law > Administrative law
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