Administrative Discretion and Judicial Review - From the security administration perspective of the relative concept of legitimate rights and interests of

[Abstract]: administrative discretion is a core element of modern administrative law. The one hand, administrative discretion is to facilitate the administrative body to improve administrative efficiency, to perform administrative functions and set permissions, hence the necessity of its existence . On the other hand, if the administrative discretion in the running because of lack of reasonable control of the process which led to the abuse, it must lead against the legitimate rights and interests of the administrative relative adverse consequences, and the administrative law poses a serious threat that can affect the realization of justice . Therefore, to strengthen the control of administrative discretion to prevent its abuse is essential. proved that to control through judicial review of administrative discretion in order to achieve the legitimate rights and interests of security administration relative to the purpose would be feasible and effective way.

[Key Words]: The Chief of the main administrative counterpart judicial review of administrative discretion

First, the administrative discretion inherent need for meaning and existence

With the increasing development of society, administrative management are becoming increasingly complex and variability present situation, and legislative action but because of its generality and stability with its own characteristics, not fully, accurately predict and regulate the administration of all matters, which led to the characteristics of flexibility and variability with the administrative activities and stability of legislative acts of the general contradictions between, this contradiction makes the administrative body administrative activities in the time limit, but a loss is inevitable. To solve this contradiction, gives the Chief of the main administrative activities in a certain degree of discretion is essential, as it can facilitate the administrative body to improve administrative efficiency, perform administrative management functions. So the right to administrative discretion in this particular situation Jiu The following was born. can be said that administrative discretion is the product of the development of modern administrative law, and increasingly become a core element of modern administrative law. Of course, administrative discretion should also have a further understanding and definition of this first of all involves administrative discretion inherent understanding of the meaning. In China, scholars initially to administrative discretion the following definition, that is, "Where the law does not detail the provisions, the executive in dealing with specific events, in accordance with their own judgments appropriate approach is discretionary administrative measures. "{1} we can see from the definition of the expression, administrative discretion is the administrative body administrative activities in the absence of clear legal provisions for the case as the basis for being granted flexibility to deal with administrative matters of authority, acts of administrative discretion is therefore a strong workable an administrative measure. However, the definition has some problems, mainly in which so-called "no detailed provisions of the law," the statement more general, what is the meaning of the provisions required by law, but the situation was ambiguous or did not provide for the legal situation, it is should be clear, as it relates to determining the administrative body administrative discretion given to the statutory basis for problem, but also of administrative discretion to apply provided. In addition, the definition that the "executive authority may determine in accordance with their own appropriate way" also lost in the regulations was too broad, for what is "their own judgments" and the "appropriate method" after all, the lack of clearly defined, or do not have a certain standard restrictions, I think this is inappropriate, because if in accordance with this definition to define the administrative discretion, it certainly makes the administrative discretion in application of standards too broad and easily abused in practice increases the likelihood. Also, this definition recognized by the exercise of administrative discretion is limited to the executive body should also be considered if appropriate. [1] for the problems in the above definition, Some scholars further believe that the administrative discretion should be laws and regulations to give the executive administration according to the legislative purpose and the principles of fair and reasonable conditions of behavior to judge their own way of choice behavior and the power of freedom to make administrative decisions. {2 } This view shows the application of administrative discretion is the result of the premise must be laws and regulations to give, while administrative discretion to be exercised in a manner clearly defined relative to the above mentioned "appropriate method" so vague abstract terms concerned, the point of view makes the administrative discretion in the application of more stringent standards to reduce the arbitrariness, and thus more desirable. Indeed, despite the administrative body dealing with administrative matters in the process encountered a law does not stipulate the circumstances, that is the treatment of these matters are not directly available by virtue of the law as a basis, but not at this time administrative body needs to function on its own grounds of any of these matters directly, the correct approach is to seek the relevant administrative body should be legal normative authority, and within the mandate authorized by law, can deal with these matters. Otherwise, the administrative body has not been relevant if the licensing law in the case of approval on the diameter of the line there is no law dealing with the issues as a basis, there is the abuse of administrative Discretion is suspected. On this point, the German administrative law scholars to make comparisons Maurer clear explanation of its view that the Federal Administrative Procedure Act under section 40 and its corresponding specification are clearly defined: the executive shall (obligation to "the purpose of the exercise of discretion under the mandate to comply with the discretionary limits of the law." administrative authority does not comply with these constraints, the event is "a discretionary defective" and therefore illegal. {3} On the other hand, if a some of the handling administrative matters related to law as a basis, but these laws are quite abstract and vague, of the administrative body to deal with these practical operational matters, then administrative discretion to play a positive role, but Under such circumstances, the application of administrative discretion is not is unlimited, which means that one shall be arbitrarily independent administrative body to decide how to deal with administrative matters and unfettered, the premise must also be approved by authorized law. Of course, the Authorization Act provides only administrative body dealing with administrative matters in the necessary basic principles, without violating the basic principles of the specific way of dealing with relevant issues may leave room for a larger administrative body discretion, required to deal with the matter, especially in the case of ambiguous legal provisions, administrative body's discretion because of its reasonable discretion, the advantages of flexible options to make up for these shortcomings can be easy to administrative matters are efficient and smooth manner. If Authorization Act for the administrative matters to be dealt with to the provisions of a micromanager to the administrative body without leaving any room for discretion, then the setting of administrative discretion would be meaningless. As a scholar of the Western words: "with the rules to restrain administrative discretion, mechanical application of the results will unconsciously to lose the nature of administrative discretion." [2] Through the above analysis, the author of the internal administrative discretion may wish to make the following definition of the meaning: that administrative discretion is the administrative body in the administrative management activities, through relevant laws and regulations mandate the actual situation based on objective and reasonable by subjective judgments, not against the Authorization Act established the scope, extent and under the premise of the basic principles no legal or statutory provisions, the administration is not clear to decide matters dealing with the power and flexibility. I believe that such a definition is more circumspect and thorough, but also the more fit the nature of administrative discretion characteristics.

Administrative Discretion in the clear on the basis of the intrinsic meaning of, I think we need to further examine the reason of administrative discretion the need for the existence, as before, administrative discretion is based on the balance of the flexibility of administrative activities, and more degeneration and legislative acts of the general, the conflict between the stability to be set. Indeed, I further believe that legal norms are often based on the typical social phenomenon of the past, worked out, but the social phenomena are often in rapidly changing , a new social phenomenon must differ from the original social phenomenon, is bound to bring about social change phenomenon complexity of social relations, and the face of increasingly complex social relations, even if the formulation of detailed legal norms may well not completely exhausted specification, the complex of social relations also makes increasing administrative matters, and covers a wide range of new situations and new problems emerging, and legal norms in response to these changes, inevitably be somewhat behind Moreover, the legislative technical point of view, limited the principle of legal norms can only make more provisions of the measures and to make available the range up and down, but by the administrative body on this basis, to respond to emerging social issues. Therefore, as the administrative discretion to ensure that the administrative body activities in the administration to play a dynamic role and fully compensate for the inadequacies of the important ways and Deyi reasonably exist and continue to expand. As some scholars have said: "The law allows discretion to expand moderately, in fact, been widely as a solution to modern legal and expedient administrative relationship problems. "{4} On the other hand, the existence of administrative discretion is also based on administrative management activities of the professional and technical requirements into account. because, as said, the field of modern society, the growing complexity of administration and variability of the situation makes the handling of administrative matters professional and technical level has substantially increased, and although the collective wisdom of the legislature legislative activities, the characteristics of prudent action, but in the treatment of certain specific matters, the administrative body is clearly with the legislature do not have the professional and technical advantages, compared with the legislature, the chief subject of this advantage also determined the activities of their administrative rules and internal operating characteristics to better understand and become familiar with the actual operation it is also more accurate and in place . Therefore, the administrative activities of the administrative body should take full advantage of this advantage, the principles and provisions of the law to play an active administrative body within the scope of the initiative is necessary, which will be conducive to the complex administrative and management activities make scientific and rational division of labor, thereby improving administrative efficiency, and promote the realization of social justice. In fact, looking forward to the legislature to formulate a non-exhaustive, all-encompassing legal norms to address the increasingly complex administrative update and management activities is not practical because neither the legislature nor the relevant professional and technical knowledge sufficient energy to be completed. So given a certain degree of administrative body discretion to make administrative and management activities tend to be a reasonable division of labor under the direction of professional and technical development would be a wise choice would be, perhaps this is precisely the existence of administrative discretion and to develop a more powerful reason.

Second, against the legitimate interests of the administrative counterpart - the abuse of administrative discretion the adverse consequences of

Administrative Discretion and the need for it has its existence, however, everything has its two sides, and administrative discretion in the administrative body administrative efficiency to facilitate and fulfill the administrative functions can play an active role, it should be worthwhile. But should be noted that administrative discretion in the operation if the lack of reasonable control, will inevitably lead to adverse consequences of abuse. In other words, administrative discretion in the "free" should not not be over without any restrictions. In general, the administrative discretion If the right is reasonable and just get to run, not only will not infringe the legitimate interests of the administrative counterpart, but also the most fully protect the legitimate rights and interests of the administrative counterpart to achieve, and make it to national and public interests consistent. However, the Chief Discretion, after all, is a power, any power of the natural properties of self-expansion, so the administrative discretion is also without exception, any of its uncontrolled expansion is the extreme manifestation of this property, as Montesquieu said: "All people will have the power to abuse of power, which is eternal and immutable rule of thumb, have the power to the people to use the power limit has been met with only resting place." {5} Moreover, administrative discretion in relation to other in terms of executive power and has its own unique flexibility and variability, which determines its tendency to more abuse. "abuse of discretion is unfair to the title of the exercise of discretion." {6} shows that abuse of administrative discretion the most common manifestation is that it can not be reasonably and fairly exercised, that would clearly against the legitimate interests of the administrative counterpart, because the administrative body in the exercise of discretion in the process if the lack of rationality and fairness considerations it is possible to complete the needs of their own interests or convenience to perform its functions whom willful and neglect even without considering such administrative discretion in running the executive after the relative effect of the possible negative effects.

In practice, the operation of administrative discretion the lack of rationality and fairness of the performance can be found everywhere, such as administrative punishment, "<PRC Administrative Punishment Law"> Article 4: "implementation of the administrative penalty shall be based on facts as the basis for the facts and violations, the nature, circumstances and damage done to society. "that must carry out" punishment rather than "principle. But despite such legislation, but in the administrative punishment in clear violation of the implementation process" over punishment rather "the principle of administrative sanction is obviously caused by the situation I am afraid that just a few, the so-called obviously unfair, mainly refers to the magnitude of the administrative penalty was unfair, in the" quantity "on the Jiqingjizhong, means of punishment and the punishment was disproportionate between the purpose of . or to the circumstances of the case in the administrative offense, nature, consequences, means and extent of social harm perspective, the Chief of the punishment clearly beyond proportion. {7} is obviously unfair to impose administrative penalties are administrative discretion is no doubt The typical situation of abuse of power, because the administrative penalty as one of administrative enforcement action, the important feature is to allow the discretionary administrative body, but the administrative punishment of administrative discretion should only be reflected in the provisions of existing laws and regulations do not exceed the standards and scope of discretion to punishment, or administrative body in the exercise of administrative punishment in the administration of administrative discretion should be illegal relative degree of hazard scale, not too much deviation. However, general view of China's current administrative penalties associated with legal norms, on Administrative Discretion in the "free" for the most part are quite broad provisions, particularly the implementation of administrative discretion is not enough refining the scope and magnitude, the lowest point of discretion and the highest limit points are free to choose between the magnitude is too large , and some even no specific standard to follow, including "<Food Sanitation Law>> Article 37, paragraph 4 provides that" serious violation of the relevant provisions of this Law, be liable to more than 20 per 3 million fine, " Here, the only "serious" as the standard punishment for a fine range of discretion provisions are so wide, on the "serious" level and the corresponding amount of fines are not on the amount of further refinement, the deviation of the process of implementation is inevitable. In addition, some administrative regulations provides only the type of punishment, but no amount of punishment range. If <<Compulsory Education Law "> Article 15, paragraph 2," on the recruit age children and adolescents employment organization or individual ... ... the circumstances are serious, may be fined, ordered to suspend operations or revoke its business license, "and so on. some of them even did not provide the type of punishment, only requires the administration of law relative person "can be given administrative punishment." such as <<Compulsory Education Law "> Article 16, paragraph 4, states:" in violation of the first paragraphs of this article, according to different circumstances, were given administrative sanctions, administrative penalties, " Another example is the <"File Law"> Article 24, paragraph 2: "There preceding section (five, the first (six acts, the state administrative organs and can be given administrative punishment", and so on. can be said that free too wide range of discretion to the administrative body must arbitrarily create the conditions for the implementation of administrative penalties, the punishment must be the result is obviously unfair, it also gives the abuse of administrative discretion to leave the gap. I believe that is obviously unfair administrative penalty The most direct victims is the administrative counterpart, because the mandatory nature of the administrative penalty is the most prominent, relative to directly affect the executive's personal rights and property rights of these two basic administrative acts, whether the implementation of the law set the administrative body administrative penalty , the implementation of many of the administrative penalty range there is a huge scope and space, coupled with the uneven quality of law enforcement officers and the lack of law enforcement supervision situation, law enforcement personnel can easily lead to excessive use of inappropriate punishment or the consequences of punishment, in this circumstances, administrative relative of the person and property rights have been violated is extremely likely Moreover, because obviously unfair, in the form of administrative punishment seems to be consistent with the law, so the administrative body is often used as justification for imposing administrative penalties, but in fact was Injustice is a departure from the administrative penalty the spirit of the law. relative to the law in terms of the administrative penalty, administrative penalty was unfair, has a form of legitimacy because, so a more subtle, the actual harm is greater, the Chief the legitimate rights and interests of the relative degree of depth against. In addition, administrative subject to administrative punishment was unfair, and often will form after the legal grounds of human rights against the claims administrative relative, often the executive relative lack of strong legal confirmed according to administrative punishment was unfair, actually brought against them, so give the administrative counterpart to seek their own legal rights and interests of the Remedy more difficult.

In addition to the administrative penalty is obviously unfair, the abuse of administrative discretion against the administrative counterpart led to the adverse consequences of the legitimate rights and interests often occurs in situations of abuse administrative body, administrative body abuse is often a lack of administrative action made reasonable, sometimes even is illegal, and therefore also the executive relative to the legitimate interests of serious violations. According to the definition of scholars, the so-called abuse of power mainly refers to the administrative body administrative body abuse of discretion, specifically administrative body and its staff privileges at the office within the scope of violations of administrative discretion the principle of reasonable behavior. {8} In China, the administrative body abuse is often seen in the following aspects: First, poor motivation, which is the most common form of practice abuses. is that the Chief knowingly acted against the principal or his departure from laws, regulations, the purpose or principle of law based on personal interests or group interests, self-dealing, abuse of power, making unreasonable administrative acts, the second is not taken into account should be taken into account. is the administrative body in an administrative act, without considering the factors should be considered, any unreasonable administrative acts. here by the factors should be considered, including the statutory factors and the common sense factor is to consider three factors that should not be considered. is the administrative body In an administrative act, the laws and regulations should take into account factors that do not deal with the problem as a basis for making unreasonable administrative acts, fourth, capricious, is the administrative body in the implementation of the administrative act, without any established standards but according to their mood, the tether, which is arbitrary, so that the administrative counterpart at a loss. {9} administrative body abuse of administrative discretion is a common form of abuse, the harmful and no less than obviously unfair administrative penalties. Of course, abuse of power and the administrative body administrative penalty was unfair, there are some in the content of the cross, can be said that the two sides of the same problem, because the abuses were often lost in the results are just . But I would also like to in this brief distinction between the two, the first in scope, obviously unfair, applies only to administrative penalties, and abuse of power is applicable to all administrative acts. Second, in ruling on the obviously unfair, can be change, abuse of power can only be rescinded. But regardless of the administrative penalty is obviously unfair abuse of power or the administrative body or other forms of administrative abuse of discretion, will result in legal rights against administrative opposite the adverse consequences, and the rule of administrative law pose a serious threat that can affect the realization of justice. the development of modern administrative law is increasingly calling attention to the legitimate rights and interests of the executive relative to the protection, because in a society in which basic human rights and dignity is very important, even can be said that The ultimate purpose of the whole country, is strictly protected by the Constitution, basic civil rights enshrined in the constitution, already contains its own state power against undue infringement of freedom and limits the field of the mean, which is the default exception to the exercise of state power and limited powers of the inner thoughts, therefore, the legislature in order to achieve justice cases have administrative autonomy conferred on the Chief of the main color of administrative discretion, must consider whether the use of administrative discretion in the case of justice achieved, but also should give full attention to the administrative counterpart basic rights and dignity whether it has been properly protected. {7} (44-48 From this perspective, on the control of administrative discretion in order to prevent their abuse it is necessary, and has become inescapable.

Links to Research Papers Download http://www.hi138.com

Third, judicial review - control the abuse of administrative discretion effective way to

Now that you have fully endorsed the abuse of administrative discretion the need for control, then the following should be focused on the control of abuse of administrative discretion effective way. Generally speaking, the main ways to include legislative control, judicial control and administrative control other. I believe, one of the judicial control of particular concern, because in comparison to the control and administrative control of the Legislative, the perspective from the judicial control of administrative discretion to resolve the abuse problem, more substantive justice and due process to ensure the realization of is also more conducive to the legitimate rights and interests of the executive relative to the protection. Although the control of administrative discretion is a system which needs legislative, judicial, administrative, various control methods, "a multi-pronged", but in the long run view, judicial control is undoubtedly the most important control method. [3] to judicial control, the judicial review will be its core content, therefore, through practice also shows that judicial review is to control the abuse of administrative discretion the most effective way.

With the development of modern administrative law jurisdiction of the executive power of control has become an important issue, accordingly, through the strengthening of judicial review of administrative discretion to control the abuse has become the world's first implementation of administrative law act, notes, free discretion is not unlimited, and when authorized by the legislature ignored the administration brought the issue arbitrary and abuse of power, the judiciary should interpret the legislative intent of the legislature and the legislative intent, the Court's task here is to determine whether the abuse of executive administrative body discretion, whether the violation of licensing law and legislative intent of the spirit, so as to control the executive power to maintain the rule of law. {10} As Western scholars said: "The Council authorized the public authorities to keep the power on the surface of these powers seems to be absolute and arbitrary. But arbitrary power and unfettered discretion but the court refused to support it. They weave the principles of a limited network structure, require the statutory power should be reasonable, good faith and the only legitimate purpose of the exercise, and with the spirit and content of the Authorization Act is consistent. "{11} In particular, for the above said the abuse of administrative discretion the characteristics of judicial review should primarily focus on the following several aspects.

First, the review of administrative discretion whether legitimate legal basis, which means that the decision to grant administrative body for the exercise of administrative discretion to review the mandate of law itself. As some scholars have pointed out that judicial review of administrative discretion, if only the exercise of discretion is whether the ultra vires, the process of discretion whether the requirements of due process compliance review is not enough to effectively control the abuse of administrative discretion, the rights of citizens are still not effectively protected. Therefore, it should be allowed deep into the administrative courts the discretion to intervene in itself, a substantive review. {7} (43 notes, the legislature granted to the executive body of administrative discretion must meet certain prerequisites, specific, that the judiciary should review legislation Authorization Act, agencies are violating the Constitution and laws related to the specific, that is if there's content and procedures of ultra vires ultra vires the authority, because the legislature granted subject to the exercise of administrative discretion should be limited to those who are indeed matters of professional and technical knowledge to rely on the legislature and who have no response to the administrative body dealing with the necessary administrative matters, in short, the legislature authorized law must follow a principle of necessity, and those within the exclusive purview of the legislature is not at liberty to grant administrative matters Subject to the exercise of administrative discretion to be addressed, otherwise the legislature would be regarded as indolent in exercising their duties, and its enabling law itself would make ultra vires for the content somewhat in the absence of legality and legitimacy , also should be noted that the legislature must be based on the statutory Authorization Act procedures, that rigorous procedural norms, or procedures authorized by law may be ultra vires by violating the Constitution and the law, and thus ineffective. the fact that on the real life there are a lot against the principle of necessity the legislature authorized and unauthorized excessive use of state authority, leading to administrative discretion and, ultimately attributed to the blind expansion of the abuse, the situation is indeed not very optimistic, as administrative discretion ask Authorization Act, the exercise itself is based on the lack of legality and legitimacy, how can ensure that the administrative discretion in the actual operation of a fair and reasonable it. Therefore, by judicial review is necessary to rectify the above situation, the legislature in-depth study granting administrative subject matter of administrative discretion is indeed necessary, to ensure the legality of authority and legitimacy with the law itself.

Second, review the exercise of administrative discretion whether the legislative intent of the legislature and the spiritual essence. Western scholar once said: "Discretion is always the principle of good faith include an honest, law has its own objectives, deviation from these targets as fraud and Corruption should be denied the same. "{12} This shows that the laws and regulations of any administrative body in the award of the right of administrative discretion, has its intrinsic purpose, the exercise of discretion, administrative body, must be correctly understood the legislative intent of the legislature and the spiritual essence of being within the scope authorized by law for the specific case, for the just and reasonable motives, select the most appropriate behavior to achieve the best effect of the administration. So administrative body in the exercise of administrative discretion, must face up to this point, should not be with this contrary to, or constitutes an abuse of administrative discretion. But in fact, entirely possible that the Chief of the main drivers for their own interest or momentary interest, desire and other reasons, deviated from the legislative intent of the legislature and the spiritual essence of subjective indiscriminately discretion, leading to administrative discretion can not be reasonably exercised. administrative discretion will inevitably lead to the unreasonable exercise of the executive relative to the legitimate interests of the infringement, but the extent of its abuse of administrative discretion than the legitimate exercise of the non-Jewish it had been, since the legislature of administrative discretion within the limits prescribed by law authorized administrative body for the freedom of choice, unless the administrative body beyond the limits prescribed by law, the exercise of its discretion, the scope should be lawful, does not exist unlawful exercise of administrative discretion one said. So the law of administrative discretion within the provisions of the abuse of administrative abuse of legal but unreasonable, and thus has more hidden, it is the case, the relative who was the Chief Administrative Discretion the exercise of the right against unreasonable, it seems unable to protect themselves through legal means. So I believe that protecting the legitimate rights and interests of the administrative counterpart to consider, on the administrative discretion of the judicial review should include not only the legality of the review, should include a reasonable of review, thereby changing the exercise of administrative discretion an unreasonable situation. Specifically, on a reasonable administrative discretion of the judicial review can follow the following three principles: First, the principle of rights protection, which requires the exercise of administrative discretion one should help to promote the legitimate rights and interests of the administrative counterpart to achieve, two people will have to ensure that the administrative burden relative to a minimum, the second is equally applicable principles of law, which requires in the same case, can not vary, favoritism, has appeared The handling of similar cases to follow the precedent in the third, the principle of proportionality, which requires discretion within the means of administrative body or law enforcement measures and enforcement should be aimed at maintaining a proper ratio, to avoid unreasonable results. { 13} Only this, the administrative discretion to the legislature in line with the purpose and essence of the legislation under the rationalization exercise.

Again, review the exercise of administrative discretion if there is abuse of power and the process was unfair, the case of administrative penalties. Among them, the abuse of administrative discretion exercised with reasonable despite the exercise of administrative discretion on the content of the cross, but abuse of power is often manifested in the administrative body subjectively know that their actions contradict or deviate from the laws and regulations of the purpose or principle is still the case intentionally, so the abuse of power Zhuguaneyi deeper, essentially belongs to the illegal exercise of administrative discretion A, so the abuse of power of judicial review should actually be a legal review. [4] Strictly speaking, the administrative penalty was unfair, but also the exercise of administrative discretion an unreasonable performance, but usually occurs because of its in the field of administrative punishment, and in other administrative acts like rare, so its review is also with a certain particularity. Generally speaking, I believe that in terms of judicial review for abuse of power is mainly based on the Administrative Procedure Law in China the provisions of Article 54, combined with the administration of the main features of abuse of power, can be specific review of the administrative body in the exercise of administrative discretion in the process if there are the following: with malicious motives to exercise discretion in the exercise of discretion during the course of the fact that the qualitative error occurred during the exercise of discretion in dealing with the matter without considering relevant factors, not the interests of justice laws in the exercise of administrative discretion, the exercise of discretion during the course of any legal term flexibility to expand or narrow interpretation, and for the exercise of freedom Discretion deliberately delaying the process or not, as such. {14} Of course, it has exhausted the administrative body the case of abuse cases pending questions, but what is certain is that these cases if one or several, The People's Court can act as the executive abuse of power be rescinded. In addition, significant loss of impartiality in the judicial review of administrative punishment, the author believes that China is mainly related to the provisions of section 54 of the Administrative Procedure Law of the People's Court was lost just change the right of the judicial administrative penalty issue, that issue is concerned, should pay attention to the following aspects: Firstly, because of the administrative penalty was unfair, mainly against the legitimate interests of the administrative counterpart, so the exercise of judicial power should be changed administrative proceedings administrative opposite premise, because the judicial supervision of administrative power by administrative counterpart to initiate administrative proceedings intervention request, which has a passive supervision should follow is not to ignore this report principles of fundamental justice. Second, the exercise of judicial power can not change the administrative penalty as a general lighter emphasis is obviously unfair to be changes because the administrative body administrative punishment made by the amplitude in the punishment.

Whether Jiqingjichong is the people's courts the right to change the basic implementation of judicial measure, if made by the administrative body administrative punishment and be punished relative to the actual administrative violations should be subject to administrative punishment disproportionate, too poor, or the general feeling aroused injustice and outrage, then it is obviously unfair, the court may exercise their right to change, if not the injustice of administrative punishment to a certain extent, but lighter in emphasis within the range of discretion, the court can not exercise the right to change, should decisions to maintain, At the same time can be subject to judicial recommendations to the Chief, to assist the Chief of the main attention to the improvement and correction. Again, the exercise of judicial power to change laws and regulations should be in the scope and magnitude, this means changes in court and administrative decisions should be relative to human violations of the facts, nature, circumstances and extent of significant social harm, or change the sentence would be illegal. Finally, the judicial exercise of the right to change the administrative counterpart should not increase the punishment. This is the most important because the administrative sanction is obviously justice, including punishment Jiqingjizhong two cases, in which the abnormal light administrative punishment, the court can sentence increase it. I think not, because the Criminal Procedure Law is that "an appeal not Infliction" principle, which is against crime, The administrative violations than criminal acts, in fact, nature, circumstances and level of social harm and other aspects of lighter, since the crime can be applied to the "Appeal not Infliction" principle, then, to follow the administrative violations are more the spirit of the principle that "change does not increase", this would also help to protect the procedural rights of the administrative counterpart. However, if the victims of administrative violations of administrative punishment that abnormal light and a lawsuit, is another matter, the court In the decision, the court can not "change does not increase the" principle of limitation, it is necessary to distinguish between.

Notes:

[1] Strictly speaking, the administrative body not only refers to the executive, should also include the laws and regulations authorized by enterprises, institutions and social groups, so the extension of administrative body should be wider than the executive. Of course, as the executive organ is the most The main administrative body, stated in so many of the executive branch administrative body actually refer to. But I think that more scientific formulation or the use of the title more appropriate administrative body.

[2] Cf. DJ Galligan, "The Nature and Function of Policies Within Discretionary Power" (1976Public Law 332.

[3] It should be noted that the discretionary power of administrative control is necessary to strengthen legislation, because a sense, the administrative discretion of the legislature to delegate his responsibilities to the executive body, the executive subject to their own to fulfill the will or determine the administrative functions of the authority, if the law gave the chief subject of free space is too large, or the exercise of the lack of necessary objective standard, the abuse of administrative discretion is inevitable, so that the level of this legislationһ����ȷʵ���ҹ��������ɲ���Ȩ���Ʊ�����һ��ԭ��.����,�꾡�ķ��ɲ�����ζ���������ɲ���Ȩ��Ϊ��������˵ĺϷ�Ȩ���ṩ����,ǡ���෴,����ķ��ɹ淶�����������������ڸ����������ʵ�ƽ��������������,ʹ�������ɲ���Ȩɥʧ���趨�ı���.���,��ȫͨ�����������������������ɲ���Ȩ�����ò�������.����,�����������ڲ�������ƻ���Ҳ���ǽ���������ɲ���Ȩ�����������÷���,��Ϊ���ֽ׶δ����������ڲ���������,�ƶ�������ȷ�ɲ�������������,��ǿ�ڲ�ִ���ල�����������Ȩ����������,���������������������������Լ�����Լ������ƫ��,Ȼ�����ַ�����ʵ���ڲ���ʱȴ����ʵ��.

[4]������ְȨ�����Զ���,���ڲ���ѧ�ߵĹ۵���Ϊ�䲻��������Υ����Ϊ,������˵������������Ϊ,���,��������ְȨ������ȻҪ�����Ϸ������,��Ҳ�����ų����������.�����Ĺ۵㲻��˵û�е���,����������Ŀǰ�ҹ�<<�������Ϸ�>>��5���涨:"����Ժ������������,�Ծ���������Ϊ�Ƿ�Ϸ��������."�ɼ�,Ŀǰ�ҹ��������Ϸ�����������Ϊ���кϷ��������������к��������.����,�����ҹ��������Ϸ���54���Ĺ涨,����Ժ��������ְȨ�ľ���������ΪӦ�о�����,����������������涨�޴�ͻ�Ƶ�������,ֻ�ܽ�����ְȨ�綨Ϊ����Υ����Ϊ���ܺϷ������,����,��Ȼ��������Ժͨ���������Ͽ�������ְȨ���������ϺϷ������ԭ���໥ì�ܶ�������Բ��˵.��Ȼ,����ְȨ�бض��漰�������������Բ����Ե�,�������Ͽ϶�������ְȨ���к��������Ҳ����ȫ��Ҫ��,Ŀǰ������ְȨֻ�綨Ϊ����Υ����Ϊ���кϷ������Ҳ��Ȩ��֮��,����Ҫ�д���Ӧ����������.

Links to Research Papers Download http://www.hi138.com