THE MEDITATION AND CORRECTION OF THE DISCRETION IN ADMINISTRATION  

行政自由裁量权概念的迷思与匡正

作　　者：Zhang Hong 

机构地区：[1]Associate Professor for Administrative Law at Liaoning University Law School.

出　　处：《Frontiers of Law in China-Selected Publications from Chinese Universities》2014年第1期50-70,共21页中国高等学校学术文摘·法学（英文版）

摘　　要：Administrative discretion is a well-developed concept. On the one hand, there is an objective need for it in legal system, but on the other hand, it also includes artificial factore It becomes the pretense for the expansion of the administratio~ Although it is based on incorrect guidance that was established earlier, the concept of administrative discretion can be internalized and submerged~ However, the voncept is now losing steam, because the theory of national sovereignty is now fading, the power of administration is weakening, the administrative species are rapidly increasing, and the ＂uncertain legal concept＂ has now subsumed the compressed scope of discretion and other aspects of the discretion Thus, we must make administrative discretion in the field of administrative law vanish as soon as possible. Furthermore, we have to consider the ＂discretionary regulations＂ and ＂discretionary facts＂ which belong to administrative law under the administrative acts. We must give it a justifiable basis through judging its＇ purpose, public welfare and legitimacy. Finally, the administrative proceedings take the actions and omissions, exceeding authorities and abused authorities as the content for judicial review. Further, the courts have to cancel the current reversal of judgment, take the confirmed judgments, revoke judgments and confirm invalid judgments as the judgment ways.Administrative discretion is a well-developed concept. On the one hand, there is an objective need for it in legal system, but on the other hand, it also includes artificial factore It becomes the pretense for the expansion of the administratio~ Although it is based on incorrect guidance that was established earlier, the concept of administrative discretion can be internalized and submerged~ However, the voncept is now losing steam, because the theory of national sovereignty is now fading, the power of administration is weakening, the administrative species are rapidly increasing, and the ＂uncertain legal concept＂ has now subsumed the compressed scope of discretion and other aspects of the discretion Thus, we must make administrative discretion in the field of administrative law vanish as soon as possible. Furthermore, we have to consider the ＂discretionary regulations＂ and ＂discretionary facts＂ which belong to administrative law under the administrative acts. We must give it a justifiable basis through judging its＇ purpose, public welfare and legitimacy. Finally, the administrative proceedings take the actions and omissions, exceeding authorities and abused authorities as the content for judicial review. Further, the courts have to cancel the current reversal of judgment, take the confirmed judgments, revoke judgments and confirm invalid judgments as the judgment ways.

关 键 词：管理条例 自由裁量权 校正 定权 法律体系 行政法 国家主权 行政执法 

分 类 号：P207[天文地球—测绘科学与技术] D922.1[政治法律—宪法学与行政法学]