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Administrative Discretion On the control of administrative discretion by sdgswgwe

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Administrative Discretion On the control of administrative discretion

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									Administrative Discretion of Administrative Discretion control

Free Administrative Control
¡¾English Title Thecontroloveradministrativediscretion

 ¡¾Abstract¡¿ administrative discretion is a modern the core of executive
power, is a real and substantial executive powers, to exert the necessary
control it is necessary. This paper discusses: the nature of
administrative discretion, there is scope for further understanding of
dual nature; legislative technology abuse of discretion and corruption
prevention and control; Judicial control of administrative discretion;
administrative organs of internal control.

Key words control / administrative / discretionary power

¡¿ ¡¾text

 discretionary power is one of the most elusive phenomena of power In
administrative law a more fertile soil in which an alarming rate,
fission, organizations and flooding, impact and control of more natural
and man-made rules of law. How to impose an effective and appropriate
control, is already one of the many words of senior attention, which I
tried to speak briefly on a number of issues, hopes to invoke experts.

1. Basic understanding of

 deeper understanding will undoubtedly help to firm action, both inside
and outside of this chapter attempts to explain the existence of the
discretion to seek the best control entry point.

1, the nature of knowledge:

(1) the meaning of discretion

A, what is the discretion?

 U.S. Black's Law Dictionary interpreted as: in certain circumstances in
accordance with terms of a proper and fair way to make the act of 1; Mr.
Wang Mingyang in the "American Administrative Law" in the definition:
that the executive For what decision to make a great freedom to the
various possible courses of action to choose, according to the executive
judge to take some action, or inaction. The scope of the executive
authorities limited freedom to choose the content of decisions, it may be
mission method, time, place, or focus area, including the decision not to
take action, including 2; also suggested that: China's administrative
discretion should be the Chief subject within the purview of the
statutory conditions on the behavior, behavioral processes, to make as to
what behavior or not and make a reasonable choice for the power of 3. In
summary, the administrative discretion of the Chief of the main criteria
in the statutory basis for the rational exercise under the option to
process or power.

B, discretion real
 teacher's view according to Shen Kui, "works of law covered in the
discretion of the judge of its exercise over subjects. But the rise of
the Chief State , the executive branch more extensive and thorough
enforcement of the law when, at the discretion of the executive was able
to pay attention to "4, shows discretion Zuizao was not in the
administrative law concerns for everyone, it is true that real
discretionary and the study of common legal issues, it "involves the
fundamental question of jurisprudence that 'body of law' and 'law' and
'people' relations" 5, Western Zhou as "rules of procedure to the
system," 6, 7 in the Constitution today , criminal law 8, 9 and so
different levels of contract law, types of text and practice abound; so I
think that although the discretion was given the cloak of legal
discourse, its essence is not limited to this, it comes from human
nature, from its profit and avoid loss of instinct, as a common behavior
or consciousness exists. For example I have a school to participate in a
reply, a lot of people in the queue, but the organization provides the
respondent to reply in order for our teachers, first of all foreign
students, followed by female students, and followed by those of us local
boys, here she is fit to exercise this discretion, so we have no
objection, the respondent conducted in good order.

C, choice, standard and rational

 discretionary power of three parts, namely, choice, standard and
rational. Because of the relatively vague legal standards exist, the
choice came into being, the selection process that is rational to be
reflected under different understanding of the process. Select indeed is
one of human nature, that "discretion is the option" 10, so there is
discretionary based on the solid foundation of natural law, in line with
requirements of the development of human reason, which is its long-term
existence and development of a solid foundation; the same time rational
people understand that people are rational, "uncertainty", with a variety
of different ways to achieve their own reason, which may lead to loss of
control of discretion; and people never let everything follow the same
standards, even if these standards is so familiar, in some minds still
relatively vague shadow, resulting in germinal fuzzy selection criteria
rely on the freedom of the individual. Thus, discretion is always the
three of growth, conflict and dependence.

(2) the discretion of the two sides

 is unacceptable because too many vague, uncertain and freedom spread,
the law came into being, and we so concerned about the Administrative Law
in the field of discretion because it is the expansion of executive power
over people's imagination and its negative emergence, but the two sides
of it, it is an indisputable fact.

on the one hand there is the need to admit it.

 run on the characteristics of human knowledge, and experience to
distinguish between things, it has limitations, and gradual, as "people
can not enter the same river twice," the grief that is difficult to grasp
as , for existing legal rules, even if the provisions in great detail,
understanding where there are differences.
A, 11, on the terms of the general rules of law it is necessary for two
reasons:

 first, understand the limitations. Legislators to recognize the capacity
constraints make it unable to foresee the future of society all the
circumstances may occur, which makes the rule of law can not be an
exhaustive, could not provide all the details, all issues are included.
12

 second, the complexity of reality. The universality of the law conflicts
with the special cases exist, "the specific application of the law in a
little time, it is detrimental to some people, wrong, while others may be
beneficial, correct, legal conditions become the same because of
draconian laws, "13, but is the case, the parties and law enforcement who
can understand the law from different angles.

 third expression of ambiguity. Semantic analysis is increasingly self-
restrict the legal use of the word trend, extremely complicated can not
describe everything to the extreme, including legislation, including a
misnomer, the rules of ambiguity and conflict is inevitable.

 fourth, legal stability. Another important feature is its due, "easily
change the law and creates a new law of the style, solid as a way to
undermine the fundamental nature of the law," "a general rule, easily
change the law practice is a sin" 14 , make the law an important way to
maintain stability even if there is sufficient flexibility to adapt to
the social development of the Strict laws, relaxation of different needs.

B, the administrative law discretion is to strengthen and develop the
knowledge, performance:

 first, quality and quantity of executive power expansion . Modern
administrative power in the expansion of the breadth and depth to meet
the accelerating pace of development of economic and administrative
affairs unlimited expansion of the trend, it is a positive socio-economic
intervention, appointed a large number of legislative power, and even
extends to the judiciary, "the development of administrative law system
The history is the history of expanding executive power, "15, this
discretion has been broadly based.

 second, administrative division of labor caused by technical advantages.
"According to the general principles of legislative technique, the law of
detail and is inversely proportional to the discretion of the judge. The
provisions of the law the more detailed preparation, the law left to the
discretion of the judge the less," while, in the West 16 or China is
today 17, administrative officials with their "technical ability" 18
again squeezed the space of justice, thus the operation of discretion
arbitrarily determined interval.

 third, final, discretionary power constitutes the core of the modern
administrative power, a real and substantial administrative powers.
Because the habit has been considered: the existence of the rule of law
case, the situation might still be valid "law", after all, short and
vulnerable, and within the border, "completely discretionary by the
executive branch to judge: What kind of regulation is appropriate, and
not to court intervention, "" administrative discretion, if not control
of the law, then what is it then? "19
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