| Summary: | 碩士 === 東吳大學 === 法律學系 === 93 === Because not conform to the reality of actual situation, it is necessary to investigate the significance, characters and other problems of the Administrative Discretion Standard.
Therefore, this article tries to observe the administrative discretion standard by the” Administrative Process Theory”. This theory is emphasized on considerations of the whole process of administration and control of the performance of the administrative discretion properly. It is important to deal with the complicated and professional problems; to ensure the fairness of the administrative actions and to increase the possibility of the calculation.
Although” The Administrative Discretion Theory” has been developed from the board sense to the narrow sense, some problems are still changing and developing. Actually, the stress of the performs of the administrative discretion has been transformed to control of the administrative Process, to the organ’s impartiality, and to the formulation of administrative discretion standard, especially try to stipulate the conditions of the mobilization of the administrative discretion, try to heighten the control’s density, and try to endow people to participation.
The administrative discretion standard can include the obvious goals, the terms of norms, the authorized staff of personnel, the control of the schedules, and the valuation of the conclusions. It has the characteristics of the softness, flexibility, efficiency and low prices. In fact, in order to prevent the performance of the discretion recklessly and unfairly, the authority often formulate the administrative discretion standard in advance .
The obligation to examine the administrative discretion through the judicial review can not be avoided. The degree of the examine of the administrative discretion is based on the principles of the separation of powers, the principles of the rule of law and the point of view of the judicial power.
For every kind of the standard of the administrative discretion,it might be the order which is authorised by law or administrative rules. This article suggested that we should combine both standards of the form and sharp to firmly believe the quality. When the foundation, substance, range and content of the authorization is clear, it should be classified to the orders. Otherwise, the rest are the rules.
The administrative discretion also should apply to the legal important conditions. Generally speaking, it could be examined according to its content. The attitude of our judicial review takes the form level to examine whether the administrative discretion standard is exceeded or slighted. In fact, it also takes the looser level.
As for whether the administrative discretion standard might be abused is harder to examine. Accordingly, the justices of the constitutional court orientated the quality to apply to different examine standards, then declared the intention that the purpose of authorize according to the law can not be violated by the purpose of rules according to the administration.
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