Annotation

The theory of administrative discretion is one of the defining indicators of the state of administrative law. Recently, considerable attention has been paid to administrative discretion in China. The authors explore the criteria for limiting administrative discretion and how it is assessed by the courts. Comparative law analysis is carried out in the literature, and the scholars focus, as a rule, on the Civil Law system. It should be noted that there are relatively few laws on administrative discretion and there is no general legislative approach. However, there are many multi-layered regulations that reflect the Chinese view of administrative discretion. For instance, such legal rules are included in the regulations of the provincial administrations, and administrative bodies may also adopt their own regulations. It is important to note that there is a consensus in legal doctrine to adopt the Chinese law on administrative procedures, which contains the rules of administrative discretion that are common to all authorities in the country. The model for this was often the German example, and sometimes the Asian experience, including Japanese, Taiwanese and others. In this situation, main ideas of administrative discretion were formulated by the courts, and the guiding decisions of the Supreme People’s Court of China played an important role in recognizing these views. These decisions reflect the complex cases that the Court considers important to society as a whole. Guiding decisions are binding on all courts, meaning that when administrative authorities exercise their discretionary powers, they must also follow such decisions. Recently, the courts have begun to apply several legal principles that are well-known in Civil Law countries and are often used to limit discretionary powers and evaluate discretionary administrative acts. In this case, the principle of proportionality is most important. In China, this principle is recognized as the legal doctrine, and the courts have begun to exercise it in practice. In this regard, it can be assumed that a new stage in the development of the theory of administrative discretion in China will be the development of its own tradition, taking into account the experience of Civil Law based on the theory of administrative procedures.