On Improving the Regulation of Leistende Verwaltung Discretion

Discussion on the rule of law thinking,law-based government evaluation questions,it is not separate from the study of administrative discretion.On the study of the nature of administrative discretion,we can not bypass the recognition of dichotomy method between the Theory of Discretion of Legal Elements and the Theory of Discretion of Legal Effect.Exploring the difference between free(facilitate)discretion and restrictive(statutory)discretion,not only helps to grasp the limits and criterion of judicial control on administrative discretion,but also helps to improve the formulation and interpretation of legal norms.Combined with the global development trend of the increased Leistende Verwaltung and the extension of discretion,we should establish the theory of administrative responsibility that meets the characteristics and laws in the area of Leistende Verwaltung,it is indispensable to improve the regulation of discretion and discretionary mechanisms.Leistende Verwaltung is an area with a strong discretionary nature.Thus,it is better to apply the purposive discretion that is functional and procedural,while the free discretion which is not corresponding to restrictive discretion is not appropriate.In the area of Leistende Verwaltung,various flexible responses with pertinence should be given according to the specific situation of each affected person.This feature determines discretion in this area needs a broader space,but also need to complete the appropriate procedures and guidelines to establish grass-roots staff to determine the priority of the situation,such as the use of rules unique powers,and stress the importance of utilizing regulation means.