OnJudicialControloverAdministrativeDiscretion公共管理國(guó)際會(huì)議論文

1、on judicial control over administrative discretionby analyzing chinese administrative litigation law 1.chen yan 2.wu wei-junschool of political science and public administration university of electronic science and technology of china, chengdu, p.r.china, 610054abstract the widespread existence of a

2、dministrative discretion is favorable to the administration organ to exercise the administrative power actively; on the other hand, its existence poses a serious threat to the principle rule of law. as one of important monitoring methods, we believe that judicial control over administrative discreti

3、on is the inevitable request of the balance of power principle, and the inevitable choice of modern country rule of law. the stipulations of chinese administrative litigation law has many obvious problems in the breadth and depth of judicial review of administrative discretion, which leads to many f

4、laws on judicial review of administrative discretion. therefore, we should focus on the breadth and depth of judicial review of administrative discretion to perfect chinese judicial review of administrative discretion.key words discretion, judicial review, breadth, depth1 introductiona great england

5、 judge named cork in 16th century once pointed out that, “the discretion means that dealing with something is not by individual opinions but by the reasonable and fair principles, not by individual likes and dislikes but by the law. the discretion should not be the despotic, unclear and unpredictabl

6、e authority, but the legal and obeying certain standard authority.” in modern society, the administrative direction has gradually become an vital constituent of the administrative power, and also is one of the most widespread and frequent power exercised in the enforcement of administrative law. the

7、 reasonable existence of administrative discretion does not mean to be utilized reasonably. its inflation, on one hand, is more favorable to the administration organ to exercise it actively; on the other hand, its existence also poses a serious threat to the principle by law, therefore we must effec

8、tively strengthen the control over discretion. as one of the monitoring methods, judicial control over discretion is not only advantageous to the effective realization of the government function, moreover, but also advantageous to promote the level by law of a country. thus judicial control becomes

9、one of the most important ways of controlling the discretion.2 the theoretical basis of judicial control over administrative discretionjudicial control, i.e. judicial review, refers to an activity that the modern country reviews the administrative actions whether to violate the constitution by the j

10、udicial procedure and makes the related processing. it is an important method of preventing the legislative power and the administrative power from being abused, also the vital performance of balance of power principle. in most countries, judicial review of administrative discretion mainly carries o

11、n by the administrative litigation procedure, namely court reviews a certain administrative action whether to be abused or misused as well as to breach the laws by executing the power of administrative jurisdiction. as an effective method of monitoring executive power, judicial control over administ

12、rative discretion has the deep theoretical basis.firstly, any power has the tendency of being abused, including administrative discretion; moreover, because of its own characters, administrative discretion has the more possibility of being abused. on one hand, the social affairs to be dealt with by

13、the administrative organs are complex; the urgency of dealing with social affairs makes the administrative organs often neglect the objective request of the administrative procedure, which provides the condition where the abuse of administrative discretion exists. on the other hand, the administrati

14、ve action usually exercises under the asylum of “free”, having a legal coat. this creates a more advantageous condition for some administrative official to satisfy the personal gains in the name of law. next, the universality of administrative discretion becomes necessary to be monitored. in present

15、-day society, the scope and the proportion of the administrative actions by using administrative discretion are large, far from other state power. if we do not carry on the effective way of monitoring the administrative discretion possibly abused, it is impossible to exercise the administration by l

16、aw and construct the socialism country rule of law.under the decentralization system, the legislative, the executive power and the jurisdiction separate from each other. the legislature may limit the execution of administrative discretion by legislating. whats more important, the independent judicat

17、ure enables this limit to realize practically. seen from the judicial function, the court, as the agency of law remedy, is the final remedy way when the rights and interests of administrative counterpart receive the violation. therefore, the judicature is clear with all sorts of forms of the abuse o

18、f administrative discretion and knows how to effectively prevent administrative discretion from being abused. at the same time, as the agency of right remedy, the judicature takes the law as the legal supreme idea, and possess specialist who carries on the judicial review, the independent organizati

19、on and the material logistics, which provides the advantageous condition to the judicature to review administrative discretion.in addition, the court mediators between the administrative organ and the counterpart by the third partys status that is independent and neutral, which can make the supervis

20、ion more effective. moreover the judicial supervision has a series of strict procedures that guarantee fair and reasonable decision to enable supervisions validity to be realized fully. therefore, we believed that judicial control over administrative discretion is the inevitable request of the balan

21、ce of power principle, and also the inevitable choice of modern country rule of law. 3 the presence of judicial control over administrative discretion in chinachinese administrative litigation law promulgated in 1989 symbolized the establishment of judicature review mechanism in our state and simult

22、aneously indicated that our state strides an epoch-making step on judicial control over administration discretion. the judicial review plays an effective and important role in protecting the citizen and the legal person and other organization's legitimate rights and interests, supervising the ad

23、ministrative organ to correctly exercise the power. on the other hand, we should also see that judicature reviewing of administrative discretion has many problems in reality. much administrative discretion in violation of the rights and interests of counterpart is out of control, having become the w

24、illfully handling power. this mainly attributes to legislates itself of administration litigation in china that has the obvious flaws so as to fail to satisfy the effective control over administration discretion. 3.1 the breadth of judicature review of administrative discretion the breadth of judici

25、al review of administrative discretion solutes to the crosswise relations between the jurisdiction and the executive power, namely what discrete administrative action should be accepted the judicial review. in article 2, 11 and 12 of chinese administrative litigation law stipulates the aspect relate

26、d to the scope of judicial review of administrative discretion. in article 2 of chinese administrative litigation law stipulates: the citizen, the legal person or other organizations who think the administrative organ or the concrete administrative actions of the administrative organ staff's enc

27、roaches upon their legitimate rights and interests, can be entitled to institute an appeal to the people's court according to this law. the article 11 explicitly enumerates 7 kinds of administrative actions, which may be reviewed, some additional regulations about citizen who think the administr

28、ative organ encroaches upon other rights and the property rights may institute an appeal. the article 12 of chinese administrative litigation law stipulates from the reverse side the elimination scope of administrative litigation, namely what administrative actions should not be sued. from the princ

29、iple of law, the article 12 of chinese administrative litigation law repels the judicature review of item including four kinds: (1) state action (2) abstract administrative action (3) interior administrative action (4) final adjudication legal. according to three stipulations, only when the administ

30、rative counterpart thinks the administrative organ exercises administrative discretion that infringe upon its personal rights and the property rights resorts to the court, the court is authorized to receive and review. and court will not review this administrative discretion that infringes upon othe

31、r legitimate rights and interests; in addition, this kind of administrative action by discretion must be concrete and exterior, not including the abstract and internal.3.2 the depth of judicial review of administrative discretion the depth of judicial review of administrative discretion solutes to t

32、he longitudinal relations between the jurisdiction and the executive power, namely what is the depth of the court reviewing of discrete administrative actionthe article 54(2) of chinese administrative litigation law stipulates: “if the concrete administrative action has one of following situations:

33、the court abates the decision or abolishes the part and decides the defendant to make the concrete administrative action again: abuse of function and power. this article (4) stipulates: “the court may decide the change when the administrative penalty appears unreasonable,” thus we can find that the

34、scope of judicial review of administrative action by discretion in china includes: (1) abuse of function and power; (2) administrative penalty revealing unreasonable. these are both called judicial review provisions of abuse of function and power in china. obviously, these stipulations conform to th

35、e world development tendency of administrative law, but it should have not actually been valued in china, which causes judicial review of administrative discretion to be empty sets. two reasons as following:3.2.1 using the principle of legality review repels the principle of reasonable reviewthe art

36、icle 5 of chinese administrative litigation law stipulates: when the people's court tries the administrative case, they only review concrete administrative action whether it is legitimate. thus it has established legality principle of judicial review in china. lack of stipulating the principle o

37、f reasonableness creates a kind of deep-rooted misunderstanding: court only can review the legality of the concrete administrative action, not its reasonableness. however, because there is no principle of reasonableness, the court fails to review the abuse of power administrative action; this in fac

38、t causes provision related to judicial review of abuse of function and power in the chinese administrative litigation law to be in empty sets.3.2.2 the standard of review is unclear and difficult to operatethe article 54(2) of chinese administrative litigation law stipulates: “if the concrete admini

39、strative action has been abused, the court can abate the decision or abolish the part and decide the defendant to make the concrete administrative action again. the fourth article of this section stipulates: “the court may decide the change when the administrative penalty appears unreasonable,” in a

40、ddition, chinese administrative litigation law doesnt stipulate the standard of judicial review of abuse of function and power. in the judicial practice, court is used to choose the relatively strong feasibility and the narrow judgment in the fourth item according to the existed prejudice, regarding

41、 the “revealing unreasonable” as a kind of standard of abuse of function and power. but the court often puts aside the second item. revealing unreasonable is too abstract to operate, so it is difficult to be the standard of judicial review. seen from the administrative case accepted by the people

42、9;s court, there are no cases decided according to the second item. although there are few cases decided according to the fourth item, there are still the cases to seek. this legislative way and the choice of court lead to the actual situation stated as following: administrative penalty revealing un

43、reasonable becomes the only manifestation of abuse of function and power, and deciding the change by court has becomes the only deciding way aimed at the abuse of function and power. this does not obviously comply with actual situation of china.4 perfecting our state judicial review of administrativ

44、e discretion judicial review of administrative discretion is difficulty to form the habit of effectively monitoring in chinese legislation, which causes the content of judicial review of administrative discretion to be nearly ineffective and the opportunity of reviewing abuses of discretion by the c

45、ourt greatly to reduce and also open the greatly convenient gate of abuse of function and power for the administrative. although the judicial controlling over administrative discretion needs some conditions, we cannot therefore fetter the court to review administrative discretion. when most of count

46、ries have their good harvest in judicial review of administrative discretion, how weakly our prejudice appears in china. we should learn from foreign experience of judicial review of administrative discretion, unify our condition and perfect the system design of judicial review of administrative dis

47、cretion.4.1 expanding the breadth of judicial review of administrative discretion4.1.1 the scope of judicial review is gradually changing from the enumerating principle to the generalizing principleaccording to stipulations of chinese administrative litigation law, unless the law has the additional

48、stipulations, the people's court does not have the jurisdiction to concrete administrative action of not involving the personal rights and the property rights. thus, under the situation of lacking of law or regulations stipulations, the law has not concreted especially the citizen rights stipula

49、ted by constitution; the infringement of administrative organ's action is difficult to be reviewed. viewing from the worldwide, the principle of the citizen constitution rights remedy is the common character of the common legal system and the civil legal system. in the common legal system, the b

50、asic rights of constitution always have the direct potency. although england does not have the written constitution, the court may adopt the constitution directly. the country of the common legal system established the constitutional government system to confirm direct potency of the constitution af

51、ter world war ii. for example, the article 1(33) of german fundamental law regulates: “the legislation, the administration and the judicial organization undertakes the duty to remedy the following basic rights.” our country must comply with the tendency, gradually changing from the enumerating princ

52、iple to the generalizing principle, simultaneously expanding the scope of the judicial control over discretion to bring other legal rights outside the citizen personal rights and the property rights into the scope of judicial review, including all kinds of constitutional rights.4.1.2 adjusting the e

53、limination items beyond judicial reviewabstract administrative action should be brought into the scope of judicial review. abstract administrative action involves a large number of counterparts, once the discretion of the abstract administrative action is abused. it would become the risky and destru

54、ctive power. looking over the state rule of law, these states all bring it into the scope of judicial review. based on stipulations in the article 72 of us federal administration procedural law, “the citizen or organization's legal rights receiving the adverse effect or infringed by administrati

55、ve action, no matter what abstract administrative action or concrete administrative action, they should be brought into the scope of judicial review. the english judicial review scope mainly determined by the case-law, any action violating the ultra vires doctrine will be brought into the scope of j

56、udicial review (including abstract administrative action and concrete administrative action. in view of chinese situation, court is entitled to the right of reviewing the administration regulated document below the administrative rules and regulations for the urgent matter.the majority of interior a

57、dministrative actions should be brought into the scope of judicial review as soon as possible. the german court has the right of reviewing the action of the administrative organ related to the change, the elimination as well as influencing on special authority and the administrative penalty. in the

58、common legal system and in france's administrative law, court has the jurisdiction of the lawsuit caused by the official. thus, bringing interior administrative action into the administrative litigation scope is general procedure in the world. in practice, totally removing internal administrativ

59、e action from the scope of judicial review is not favor to the protection of the administrative organ staffs rights and causes the administrative organ to infringe on the counterpart so as to make the judicial remedy become “the blind spot”. the judicial remedy way is not unimpeded, which causes the dispute within the administrative organ staff not to be solved correctly as soon as possible through the internal channel, with a result, it may cause the contradictory intensification and affect society's stability. based on this, the