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Administrative discretion on the formation of contraction and expansion - in order to prevent the type of administration as the central risk


, Only the more clearly the existence of Taiwan's administrative discretion contraction theory. The the discretionary authority. For these types of law,[link widoczny dla zalogowanych], the competent authority of civil servants ④ see [at] Original Tianshang Yan: ③ See [Germany] Ping Turner was: ~ 4l ~ jurists 4, 2008 has delayed in carrying out their duties even if the behavior of some people's rights and therefore hard to believe that the damage suffered directly, and some are still in the nature of administrative discretion is appropriate or not, the problem is neither to the extent of illegal, nor in individual cases in consideration for various reasons, such as: appropriate, the risk of people's rights suffered against the urgency of the civil service for causing the damage can be predicted that against the need to rely on the prevention of the exercise of public power can only reach the goal rather than individual effort possible to avoid other factors, so that no case can be discretionary, and naturally there is no room for the establishment of state compensation. If the legal norms intended to protect people's life, body and property, and other legal interests, and duties of the competent authority shall exercise public authority on matters clearly defined, so that the provisions of the Civil authorities have particular person may be liable as an obligation there is no room for discretion of omission is still a result of intentional or negligent or indolent in carrying out their duties to make his position should refuse to act, leading to a specific person's freedom or right to damage the victim can naturally claim damages to the state. @ That explanation is accepted by scholars that @ After this explanation is also adopted by many administrative decisions. In China mainland, on the one hand of little administrative discretion of contraction, on the other hand in practice, there is no clear rule of law applies to the case of administrative discretion contraction. However, this does not mean that in our application of judicial practice,[link widoczny dla zalogowanych], there is no contraction of administrative discretion, but only that there is no clear conscious to be applied. It should be said, we also there are many very good decisions, which coincide with the legal theory of contraction of administrative discretion, and even in some respects beyond the Japanese development. Contraction of the Japanese case of administrative discretion the decision focused on the case of discretionary shrink to zero,[link widoczny dla zalogowanych], while China is not only shrink to zero in determining the case of discretionary application of administrative discretion of individual decisions will be extended to the contraction of the application of discretion to choose the case of shrinkage to zero , op of the And administrative law in China has been contracted to build a theory of administrative discretion for the basic platform, such as improper administrative acts of administrative reconsideration review of the system, the abuse of the court to review the system of administrative authority, administrative litigation system in the discharge decision,[link widoczny dla zalogowanych], the executive is not as The state compensation system. Therefore, we do not sell ourselves short, and related research should be strengthened to expand the application of administrative discretion contraction of space, so that the courts have consciously applied, which clearly explained the legal. With the development of modernization, the risk of living in increasing its self-protection, self-defense capability is relatively low, the risk of the Government to prevent, security, administrative responsibility for the care of a corresponding increase. In-depth development of the socialist market economic system and political system gradually improved today, the people with the right consciousness, demanding the government more and hope that the Government provide more services and supervision, more hope the Government can accurately make a decision, or even resort to legal means to seek the implementation of the Beijing Shu Kingdoms eating snails sold in patients is typical of Beijing Municipal Health Bureau prosecuted a case in point. How thoughtful to protect their legal interests, to pursue the administrative liability, they are bound to seek the support system and theory. In China, administrative law scholars of administrative discretion in the ascendant,[link widoczny dla zalogowanych], more research will extend to the case of discretionary shrink to zero. Development of the theory will cause real concern; and realistic requirements and applicable administrative discretion will deepen and expand the contracted theory. Both must motivate each other, complement each other. In short, both theoretical research and practice development, the prospects are optimistic. (Editor: Hu Jinguang) ③ Taiwan, ③ See Chen Xinmin and said: ____ - 42. __. -
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