The Indefinite Concept of Law Inferred from Administrative Tasks

The exercising rule and supervision of administrative discretion power has long been the focal point in the research field of administrative law. Authority scope of administrative discretion and the shift of its guiding and controlling route obviously indicate the different tasks of administrative power and the change of relevant fundamental theories of administrative law and constitutional theories. The analysis shows the dividing line between the indefinite concept and the administrative discretion, coming of the judgment on whether the indefinite concept is question of fact or law in theory. The bipartite structure comprising the centre of the concept of law and the borderline of the concept of law, makes the concept of law indefinite. The indefinite space, large or small, on the borderline of the concept of law or even on the centre of the concept of law, results in the common character of the indefinite concept of law-polysemy, which indicates the applying of the indefinite concept of law certainly includes the course of choosing the most appropriate meaning to the specific case. The inherent factual intension of the indefinite concept of law denials the assumption that its applying is a pure legal problem. By sorting out the doctrines and practice of state administrative discretion in major countries under the rule of law such as Germany, we can find that the connotation and denotation of administrative discretion depends on the current situation and development trend of administrative tasks. In view of this, the paper defines China’s administrative discretion on the basis of major administrative tasks at present, and puts forward a definition of administrative discretion in a broad sense, including essential condition discretion and effect discretion. The innovativeness of this idea is that it uncovers the inherent relation between the definition of administrative discretion and the orientation of administrative power, thus bringing about the factual background of regulation environment and structure with regard to the characteristic of individual cases in administrative discretion.