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Judicial Restraint of Administrative Discretion

Author: CuiYanXia
Tutor: WuDongGao
School: Yanbian University
Course: Constitutional and Administrative Law
Keywords: Administrative discretion System Review Judicial constraints
CLC: D912.1
Type: Master's thesis
Year: 2008
Downloads: 109
Quote: 1
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Abstract


Judicial power and the executive power is the core of Administrative Law. Administrative discretion is an important part of the executive power, it is the difficult problems of administration by law. Continuous expansion of administrative discretion is a common trend of modern public administration, but also a kind of administrative discretion to abuse power. For the protection of civil rights violations against administrative discretion, countries have adopted a variety of measures and means to restrain administrative discretion. Substantial and broad administrative discretion presence is now an indisputable fact of administrative law, administrative law enforcement activities are mainly implemented through administrative discretion. Modern society is the administrative authority actively administrative discretion to better serve the community service requirements. Therefore, the current system of judicial review for deep reflection, for better play the positive role of administrative discretion, to achieve the modern administrative system of administrative discretion on the objectives, are extremely important. Administrative discretion is a hot topic in the field of administrative law. Administrative discretion is an important part of executive power, executive power is the most significant, the most unique, the most active part of the power. The essence of administrative discretion. On the one hand, the modern administrative discretion is the most common national executive part of government functions as a modern nation to achieve the necessary powers, with its administrative discretion alarming rate of growth and expansion, to maximize impact and control aspects of modern society; hand, administrative discretion is likely to be an abuse of power, modern democratic state is always trying to be tied to certain principles and framework, the administrative law for the administrative discretion to set up a Series control rules requiring its existence and the exercise must receive the necessary control, including legislative control, administrative control, judicial control, and social control and so on. Administrative discretion is a discretion of the executive power, from its source of power, features, and legal validity within the range of choice has unique characteristics. The existence of administrative discretion has both its positive role, but also has its negative effects, which lies in the reasonable control of administrative discretion. On the one hand, it plays to improve administrative efficiency and other positive role. On the other hand, it also exists to abuse and other negative effects. Thus modern legal state power and control should be granted accompanied by the line. From the perspective of the rule of law, national controls on administrative discretion is mainly controlled by legislation, administrative control and judicial control in three ways. Judicial control is considered to be one of the most powerful control mode. Administrative discretion itself is nothing but the principle of the rule of law recognized by an administrative behavior, methods or forms, but in the extent legally binding different restrictions there. Based on different criteria, one can make a lot of administrative acts different categories. Which, according to legal norms binding on the different levels of administrative acts and administrative acts can be divided into custodial beam behavior and discretionary behavior; according to legal norms binding on discretionary behavior in varying degrees, can be divided into custodial beam discretion and discretion; Furthermore, according to legal norms discretion of the executive power of the different stages of recognition can be divided into elements of administrative discretion discretion discretion and effectiveness. How appropriate and reasonable administrative discretion to operate, many countries in recent years attracted the attention of scholars of administrative law, this paper analyzes the judicial administrative discretion constraints and resulting negative effects on the administrative discretion to propose effective ways to control the executive improving the use of discretion.

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