Beijing Law Review, 2012, 3, 128-132 Published Online September 2012 (
Fundamental Research on the Administrative Discretion
Yang Yang
School of Politic Science and Public Management, Southwest University, Chongqing, China.
Received June 2nd, 2012; revised July 8th, 2012; accepted July 18th, 2012
This paper describes a system for the analysis of the administrative discretion standard. Now, it is a new phenomenon in
the practice of administrative law enforcement. We shall first briefly introduce fuzzy sets and related concepts of the
administrative discretion standard, and then, we try to introduc e the intrinsic value of its legitimacy. At the same time,
the research standard of interpretation, procedure and “requirements-effect” are discussed based on the analysis through
its content. From the above discussion, the conclusion can be reached that it is the power’s structure to deal with indi-
viduals and societies on the micro side.
Keywords: Administrative Discretion Standard; The Standard of Interpretation; The Standard of Procedure; The
Standard of “R equ irement s-Effe ct ”
1. Introduction
All areas in our living world must be monitored in the
law-ruled society. In this situation, the administrative
discretion standard as a means that controls administra-
tive discretion emerges as the times require. It can be
used to standardize the existing discretion power and
compact the space of the existing discretion power as
much as possible. However, what kind of value is its
legitimacy based on? How should people grasp this legal
phenomenon? This paper tr ies to find the answer through
analyzing the text of the law enforcement.
Along with the State Council’s distribution of the
Comprehensive Advancement Legally Administration
Implementation Summary in 2004 (Guo Fa [2004] No.
10), in order to implement “to win the people’s confi-
dence, governing for the people” concept, all executive
authorities in the country have been setting a variety of
the administrative discretion standards to seek the ration-
ality and justice of the administrative discretion. The
administrative discretion standard’s practice is in full
awing and is also increasing. Taking the public security
system as an example, on January 30, 2010, Chongqing
Municipal Public Security Bureau in China issued the
work specification of Chongqing Municipal Public Secu-
rity Bureau traffic patrol Police Service (Trial) for the
newly established Police Traffic and Patrol that are re-
sponsible for the traffic management, the criminal law
enforcement and the public security management. In fact,
as early as in 2008, the Chongqing Municipal Public Se-
curity Bureau has printed and distributed a enforcement
manual about the administrative discretion standard—
the Disposal Specification of Public Security Organs for
the Common Policing Alert. According to Administra-
tion Punishment Law, Beijing Municipal Public Security
Bureau introduced the Specified Standards of Admini-
stration Punishment Law (Trial) by Beijing Municipal
Public Security Bureau that combined with the charac-
teristics of Beijing. Compared with Administration Pun-
ishment Law, the noise disturbance is subdivided into
four action modes in the Specified Standards (Trial):
firstly, he or she was informed and still not timely cor-
rected, if the parking alarm has rung for a long time in
area. Secondly, in hotels and other premises for operation,
the noise of air conditioner and cooker hoods’ outdoor
unit is so loud that influences other people rest. Thirdly,
affecting neighbors rest when entertainment in own
house. Finally, interfering with any other rest when
decorating a room during the break, Guangzhou City
Public Security Bureau also issued the Guangzhou City
Public Security Bureau for Guidelines of the Public Se-
curity Cases. The most typical example is the Adminis-
trative Discretion Standard System for the Public Secu-
rity Penalty that was firstly introduced and broke per-
sonal case, relationship case and monetary case by Jinhua
City Public Security Bureau in Zhejiang Province in
2003. According to it, 9120 cases and 25,658 penalty ob-
jects are dealt with, among which nobody refuses to ac-
Copyright © 2012 SciRes. BLR
Fundamental Research on the Administrative Discretion Standard 129
cept the punishment measures instituted for reconsidera-
tion and litigation [1].
In foreign countries, by explaining the concept of un-
certainty in the law and setting elements-effect within the
law, the social and administrative management’s phe-
nomenon is often seen that appe ared in th e form of rule s,
regulations, directives, standards, guidelines, memos,
letters, notices, meeting minutes, the civil service manu-
als and a variety of training materials, etc. [2]. In France,
the administrative discretion standard is known as the
“indicator system”. It refers to the executive authorities
who have the discretion power set a standard in advance
for themselves and their subordinate organs, as a guid-
ance for the exercise of the discretion power, but still
they have power to decide whether to apply the standard
according to the specific circumstances of each case, it is
designed to enable the universality and particularity of
the administrative processing dialectically combined [3].
In Germany, the interpretation standard and discretion
standard in the administrative rules are also in the form
of method of interpretation and provisions for the way is
stereotyped for the executive authorities on law interpre-
tation. It is intended to restrain the discretion to ensure
the unified application of the law [4]. In Japan, South
Korea and Taiwan region of China, the “Administrative
Procedure Act” is also provided for the discretion stan-
dard and its publicatio n mechanism.
What is the administrative discretion standard? In view
of the form, it is to standardize the detailed standards of
law enforcement in the administrative discretion’s en-
forcement. It takes the general normative documents as
the carrier, and is a procedural, common and relatively
uniform primary standard rather than the personalized,
experiential or even random decision of law enforcement
officers. From the content, it is as a medium or bridge for
communication between abstract law and specific facts,
and is closer to the “secondary legislation”, “suborbinate
legislation”, “administrative legislation” whose purpose
is to implement the law. Its range of effectiveness may
only be involved in a microcosmic administrative area,
and only be defined within a certain administrative re-
gion and a certain administrative department [5]. It is not
difficult to summarize that the administrative discretion
standard refers to which based on the legislative intention
and discretionary authorization, under the guidance of
certain objective value, that the executive authorities as
subject did not provide the complete standard that re-
quired in dealing with the specific administrative cases in
the laws and regulations of the social and administrative
management, it is the administrative case judgment stan-
dard mainly presented in form of the normative docu-
ments and others, combined with law enforcement ex-
The next question is what a certain objective value is?
2. The Value Direction: Order, Justice and
Firstly, the need of objective value in the functional sig-
nificance. The standard itself is a tool; people can
achieve a certain objective v alue through the tools. Value
is the category that related to the subject’s purpose, will
or needs. Like science is a double-edged sword, the
standard will deviate from its purpose if without value
guidance. Secondly, the need of objective value in the
standard significance. There is the rampant selfishness
and consensus disintegration of the diverse social back-
grounds. The perfection of the objective value often be-
comes a mutually acceptable proposal by interests of the
parties. Do the value of the perfection of purpose still
sought necessarily? Based on a wide range of value con-
siderations, the discretion standard formulation authority
eventually formed provisions that might have been devi-
ated from the objective value which to show the “com-
mon good”. Even so, the discretion standard formulation
authority must put the objective value as the guidelines,
looking back, thus, to sincerely seek the consensus of all
parties of interest. In practice, the administrative organs
at all levels across the country have introduced a variety
of the discretion standards and refined the laws and
regulations for the social management and public ad-
ministration in order to resolve the social conflicts and
innovate the social management and public administra-
tion. The phenomenon is existed generally that “proper
awareness”, “lack of science”, “doing the local protection
in the name of the standard”, ”lack of supervisory
mechanism”, “bending the law for the benefit of relatives
and friends”, “regional differences and chaos” and so on.
[6] The emergence of various problems in local adminis-
trative discretion standard is the lack of the objective
value as the guidelines and as contrast. What are the ob-
jectives of to show the human ideal of “common good”?
They should be order, justice and efficiency. The reason
that the three values is the objective value of administra-
tive discretion standard, on the one hand, is that they are
the most basic needs of the rules for people, On the other
hand, is that the primary purpose of setting a rule by
people is in order to achieve these three values.
Firstly, the administrative discretion standards have to
meet people’s need for order. First of all, order is the
most basic needs of human beings. It is characterized by
category among a series of things including order, stabil-
ity, continuity and other states of relationship in space. It
is a certain degree of consistency, continuity and coher-
ence that exists in the natural and social processes is a
fixed form in man’s mode of production and life style.
People can not share orderly the survival and life to-
gether without order. The administrative discretion stan-
dard as a rule of governance was written administrative
Copyright © 2012 SciRes. BLR
Fundamental Research on the Administrative Discretion Standard
normative documents of the text form and other forms to
confirm and maintain the mode of production and life-
style in the field of administrative law enforcement, and
to ensure that the parties concerned in public administra-
tion can harmoniously coexist. It is undesirable for ex-
perience in applying Austin’s ideas—“the existence of
administrative discretion standard is one thing, its
evaluation of its pros and cons is another matter”. And
even some parties concerned in the social management
and public administration still do not have proper aware-
ness and care for the necessity, importance and urgency
of the administrative discretion power [6]. For another,
the discretion standard has no order value’s guidance will
inevitably lead to execute the law without order. In this
situation, the parties concerned in public administration,
neither the parties concerned nor opposite person for
administration are unable to make a definitive arrange-
ments and then to be trapped in the respective state of
danger. American jurisprudent Bodenheimer thinks that
the order is a certain degree of consistency, continuity
and coherence that exists in the natural and social proc-
esses. The administrative discretion standard that has
order will bring a series of performance of social life,
including the relationship stability, the processing conti-
nuity, the rules of behavior and property and psycho-
logical security of the parties concerned in the social
management and public administration during the period
of executing the law.
Secondly, the administrative discretion standard must
meet people’s need for justice. First of all, there is no
human rights if without justice, the human is not differ-
ent from animals. “Justice should not only be achieved,
but also should be achieved in the way to be seen.” The
statute law was written that the justice is considered as
any behaviors for government law and regulations. Those
who advocate the good of the community think that the
justice is limited to useful action for it. Those who advo-
cate natural law think that it is the ultimate foundation
for justice. The discretion standard that embodied as the
spirit of the rule of administrative law is to control the
power in form; in essence, it is to realize individual jus-
tice. For another, the pursuit of justice is a constant need
for human. The administrative discretion as an effective
tool of administrative law enforcement is a sharp dou-
ble-edged sword. It will become the hardest things to
achieve individual justice if we correctly adopted it. It
also will be the injury and murder weapon if we incor-
rectly adopted it “In which the government have both of
the rule of law and the rule of man, the part of rule of
man is like a fatal cancer and tend to stifle that part of the
rule of law. Perhaps, 90 percent of the injustice in our
legal system is from the discretion, but only 10 p ercent is
from the rules [7].” So the administrative discretion
should need to be restricted by the standard, it is for re-
stricting the law enforcement personnel’s personality, ex-
periences and randomness to achieve the justice of indi-
vidual case. Its original intention and effect will be bound
to nothing and it will lead to a series of dissimilation pro-
blems in practice, if the law enforcement within the dis-
cretion standard is not under the guidance of justi ce value.
Thirdly, the administrative discretion standard must
meet people’s needs for efficiency. First of all, it requires
the efficient administrative law enforcement in the mod-
ern economic life. Efficiency refers to the most effective
use of social resources to satisfy people’s wishes and
needs. You can reach the most beneficial social results
that based on the optimal allocation of resources when
the unnecessary transaction costs and social costs are
minimized if you choose the appropriate administrative
rules. Secondly, people have the need for efficiently par-
ticipating in the governance process of administrative
law enforcement. In the context of democracy, it is the
only choice that realizing the order and justice in the proc-
ess of the administrative enforcement, consulting with
the public and letting the public freely to participate in
the formulation and implementation of the administrative
discretion standard. Bu t to let the citizens take part in the
administrative discretion standard, which way is both
democratic and efficient? How did we frame the admin-
istrative discretion standard that can reduce enforce-
ment’s hate and improve the efficiency of law enforce-
ment? Dramatic changes in policy and the environment,
it is asked to take a more sophisticated and more effec-
tive response in the field of administrative law enforce-
ment. Because of the limited resources, the negotiation
must be efficient and beneficial; otherwise the public and
law enforcement authorities all will get tired of the end-
less consulations. Letting public participate in the for-
mulation of the administrative discretion standard is a
good policy that meets the tide of the modern democr ati-
zation, while improving the public administrative effi-
ciency. Efficiency is an important virtue in modern soci-
ety, it is difficult to be regarded as an ideal and perfect
society without efficiency. At the lack of efficiency as
the objective value for introducing the administrative
discretion standard, there will be happened in practice
that “the staffs’ behavior of administrative law enforce-
ment has not been effectively regulated and controlled,
such as: some have a serious privilege idea, lack of aware-
ness of service and inefficient, some abuse of power and
even abuse the law and practice favoritism during law
enforcement [5].” It will cost the social resources, but
with less enforcement effect.
Another problem is, although having the value direc-
tion, this subject is only defined within a certain admin-
istrative region and a certain administrative departments,
its range of effectiveness may be only involved into the
discretion standard of a microcosmic administrative area.
Copyright © 2012 SciRes. BLR
Fundamental Research on the Administrative Discretion Standard
Copyright © 2012 SciRes. BLR
What kind of appearance should we face the public and
efficiently achieve the rules’ governance of discretio n?
3. Rule Deduction: The Standard for
Interpretation, Procedures,
Which standards control can we truly need to achieve the
governance of the administrative discretion in practice?
On one hand, we can try to locate something by follow-
ing up a clue for rule deduction by adopting the concept
of administrative discretion standard as a starting point,
the value as directions. On the other hand, from the prac-
tice of administrative law enforcement, the formation of
discretion is mainly based on the following reasons: First
is that it will result in the concept’s ambiguity, du e to the
hard core of the legal concept in the text of laws and
regulations may be large or small and fuzzy boundaries.
At the same time, if it is combined with understanding
differences of that are based on experience that will pro-
vide very big space for discretion power. Second is that
the “requirements-effect” including procedures provi-
sions, permission or punishment is provided for laws and
regulations, and even the administrative departments also
introduced the corresponding regulations to refined. In
the actual enforcement, it is highly likely not to solve a
case in the field of the microcosmic administrative en-
forcement, this in turn leave ample administrative discre-
tion to the executive authorities. Therefore, by control-
ling the unnecessary discretion and reducing space of
administrative discretion, to achieve a balance between
rules and discretion, and eventually achieve “case jus-
tice”, it is necessary to set the Standard for interpretation,
procedures, “requirements-effect” (such as permission or
punishment etc.) [8].
From the text of the relevant standard in practice, we
can see the reply about control tool management for Bei-
jing Public Security Bureau by Ministry of Public Secu-
rity as follows.
Ceramic knives have the features of high hardness,
high abrasion resistance and sharp edge, its technical
properties have been met or exceeded the performance of
some metal knives, ceramic knives should be managed as
control knives that conform with the regulations of “the
standard for controlled knives”, such as knives’ type,
blade’s length and knifepoint’s angle [9].
This reply is the interpretation’ standard for controlled
knives in Security Administration Punishment Law 32.
The Disposal Specification of Public Security Organs for
the Common Policing Alert was introduced by Chongqing
Municipal Public Security Bureau to improve the po-
lice’s comprehensive ability in law and set the specific
standard for law enforcement. The procedure of “the
disposal for animal attacks” require as follow in the
1) Animal owner should be ordered to keep a close
watch on his animals when animals are attacking people;
2) The polices should take effective measures to stop the
attack behavior if the owner is not present, no owner or
laissez-faire by owner; 3) To inform victims themselves to
the hospital when less injured and to take to take imme-
diate measures to stop bleeding and notify 120 if it was
injured severely; 4) He or she should be ordered to send
the victim to medical and health institution s for trea tment
when the duty is clear for animal owners. To inform the
parties to apply to the peoples court or peoples media-
tion organizatio ns if the animal owner refu ses; 5) Paying
attention to the collection of fixed evidence, the investi-
gation of the on-site insider access, preliminary judg-
ment of the case properties; 6) Solving it according to the
relevant procedures if criminal or administrative cases
are under the jurisdiction of the public security organs; 7)
Filling in and storing the alarming record, dealing with
it according to relevant regulations if alarming results
need to set a legal instrument… [10].
As mentioned above, this is the standard of pro-
grammed decision that directed according to Administra-
tion Punishment Law of the People’s Republic of China,
the Police Law of the People’s Republic of China and
Interim Measures of kennel management in Chongqing.
Business bureau in Huiji district of Zhengzhou City for-
mulates the corresponding standard for “requirements-
effect according to the Provisions of Articles 15, 20, 33,
34 of the regulation of Rules of the Pig Slaughtering
Management, seeing in the table below:
One, slaughtering pig without permission and in the fixed-location
1) the performance situation for
minor illegal behavior
Because the farmer family celebrates wedding ceremonies
and funerals, they privately slaughter the live p ig aft er
purchasing it, but do not sale the pig product.
The standard for fine: warning,
registration violations and no fines.
2) the performance situation for
slight illegal behavior Since the farmers raise pig, they privately slaughter
it after fattening pig, and have the sale behavior fo r it. The standard for fine: to impose on him a fine
of not more than one times his illegal earnings.
3) the performance situation for
general illegal behavior Slaughter personnel buy pig to slau ghte r without
fixed-location, and take it as a means of operating pr ofit.
The standard for fine: to impose on him a fine
of not less than one time and not more
than two times his illegal earnings.
Fundamental Research on the Administrative Discretion Standard
4) the performance situation for
serious illegal behavior
a. Slaughter personnel buy pig to slaughter wit hou t
fixed-location and take it as a means of operating
profit and the amount of illegal earnings is larger.
b. Slaughter personnel privately slaughter pig without
fixed-location. It caused harmful consequences
or social impact.
c. Slaughter personnel privately slaughter pig without
fixed-location and refused to stop the illegal behavior.
The standard for fine: to impose on him a fine
of not less than two times and not more than three
times his illegal earnings.
4. Conclusion
In a word, it becomes obvious that the problem of the
administrative discretion standard meet the requirement
of the times, whatever it existed in advance in foreign or
it is emerging in our native country, whatever research-
ing it from the field of political science, public admini-
stration, administrative jurisprudence and sociology.
Firstly, the administrative discretion standard is as a
standard and rules for administrative enforcement power,
it is as far as possible for the executive authorities that
reasonably execute law, and it is framed through the ob-
jective value direction and rule deduction. The main
function of administrative discretion standard is for the
interpretation, including the interpretation of the uncer-
tain legal concepts, and explanation of procedures, re-
quirements-effect. Secondly, the standard should also be
accompanied by the obligation to make it well known,
but also to set its update system of the authorization file.
Usually, it is necessary to introduce the system that can
flexibly apply the standard, rather than rigidly apply it
under certain conditions. Thirdly, furthermore, the ad-
ministrative discretion standard can also be regarded as a
kind of specification and self supervision for the admin-
istrative power, the “discipline” punishing for power on
the micro view, an applied technology for the defaulted
social power that is based on the congenital unequal the-
ory. In short, the administrativ e discretion standard is the
power’s structure to deal with individuals and societies
on the micro side, but the law is applied to maintain the
social structure on the macro side. Its symbolic signifi-
cance is a sign of the reform of administrative law en-
forcement and government administrative acts for our
country and is a sample of the fairness and efficiency of
public administration.
5. Acknowledgements
The research is supported by Research Fund of South-
western University (NO.SWU1209301) and Humanities
and Social sciences Research Fund of Chongqing Munici-
pal Education Commissi on (NO.R WSK-CQJY-20110 1).
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about the Practice of Administrative Discretion Standard
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[10] X. Zhang, “The Public Information Network of Chong-
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Copyright © 2012 SciRes. BLR