Open Journal of Political Science
2013. Vol.3, No.4, 113-115
Published Online October 2013 in SciRes (http://www.scirp.org/journal/ojps) http://dx.doi.org/10.4236/ojps.2013.34016
Copyright © 2013 SciRe s . 113
Procedure Standard and Administrative Investigation
—Realization of the Self-Discipline Principle
Yang Yang
School of Politic Science and Public Management, Southwest University, Chongqing, China
Received June 21st, 2013; revised July 28th, 2013; acc e p t e d A ug u s t 1 0th, 2013
Copyright © 2013 Yang Yang. This is an open access article distributed under the Creative Commons Attribu-
tion License, which permits unrestricted use, di s t ribution, and reproduction in any medium, provi ded th e o riginal
work is properly cited.
How to effectively protect the interests and rights of individuals and how to even realize a higher-level
goal, individual justice and creative property are disturbing problems in administrative investigation.
However, the complexity of the problem is increased because it includes arbitrary investigation and com-
pulsory investigation. The specialness of the problem can be discovered through the clarity of administra-
tive investigations on the attribution of concrete administrative acts. There is another effective method,
namely the procedure standard reflecting the self-discipline principle except the mainstream method of
right-control (i.e. judicial review). It is a combination of self-discipline with right-control, and may be one
of the methods keeping pace with judicial review to realize the above-mentioned goal.
Keywords: Administrative Investigation; Concrete Administrative Act; Discretionary Act; Self-discipline
Principle
Introduction
There are over thirty direct legal norms about administrative
investigation in China through rough statistics. For example, in
the Article 6 of Customs Law, it is provisioned that the follow-
ing powers shall be exercised by customs: To check it under the
approval from direct or authorized subordinate customs director
except citizens residence, and also the parties concerned shall
be present when smuggling case is being investigated by cus-
toms officials outside these zone. The check may be carried out
if the parties concerned fail to present and the witnesses is pre-
sent. To detain those means of transport, goods and articles
proved to be involved in smuggling. In addition, laws and re-
gulations including similar provisions on administrative inves-
tigation include Labor Law, Food Hygiene Law, Securities Law,
Law on Medical Practitioners, the Control Regulations Re-
garding Civil Explosives, Road Traffic Safety Law etc. In the
modern administrative countries, people have realized that ad-
ministration according to law in a strict sense cannot be pur-
sued, but also is not appropriate for desired seeking. Therefore,
Davis repeatedly emphasized a fact, that is, the legal rules and
the discretion are in coexistence at any legal systems in history.
Roscoe Pound also proposed in an empirical and inductive way
that there was no legal system that could achieve justice only
relying on rules but not on discretion, no matter how rigor and
specific its rule system was. Two aspects of the rules and the
discretion will be involved in the process of implementing jus-
tice. This is also a dilemma for people to have to confront with.
The judicial review will always be a mainstream effective
method to limit the discretion from the view of both the conti-
nental law system’s self-discipline theory and the Anglo-
American law system’s power controlling method. From the
perspectives of controlling the discretion and preventing its
system construction, it is the common trend that the discretion’s
scope and purpose are carried out the judicial review by judicial
powers in administrative petition. Meanwhile, it is especially
necessary to pay attention to that power limits the system forms
of investigated space in a self-discipline way. The self-disci-
pline, namely the procedure standard is the realization of the
self-restraint principle.
Administrative Investigation and
Procedure Standard
Firstly, administrative investigation act is concrete adminis-
trative act (Ye, 2005). Concrete administrative acts refer to the
authority-based unilateral administrative acts made by them
that the organs and organizations as well as its personnel im-
plement their management and exercise their power for the
rights and obligations of specific citizens, legal persons and
other organizations with regard to specific issues. However,
there are different opinions about it. It is generally recognized
that administrative investigation is the activity that administra-
tive organs have to collect the information related to the acts
before making certain administrative acts. And then, it is nec-
essary that the similarities and differences have to be clearly
defined between administrative investigation and administrative
inspection: 1) They depend on each other for existence and are
not easy to separate according to the studies of Taiwan scholars.
2) The former can be regarded as a super-ordinate concept, and
the latter can be used as methods or means of the former. Ad-
ministrative inspection, asking the parties, requiring the parties
to provide relevant information and identification are generally
called as administrative investigation (Yang, 2000). In other
words, its concept includes the inspection. It is generally
thought for the nature of investigation that its acts are a factual

Y. YANG
behavior. This viewpoint is supported by the majorities of
China’s scholars. Also, there are some viewpoints to show that
it is a procedural administrative act.
The thesis that administrative investigation act is concrete
administrative act remains really credible from four aspects as
followed. Firstly, at least in terms of two essential factors that is
administrative power function, and the legal effect uncovered
by generalness, it includes not only the factual acts not produc-
ing effect for counterparts or the rights of related persons, but
also the legal acts directly punishing for them. So that it pos-
sesses two seemingly contradictory characteristics including
subservience—subsidiaries and phase and independence. The
emphasis is whether it is with compulsory legal effect. This is
just the reason why it is special as concrete administrative act.
Their acts are legal act or non-legal act in a legal sense. How-
ever, it is not scientific that it is divided for a factual behavior
that is not a legal act, belongs to administrative service and
adjusts by the administrative law between legal and non-legal
act (Fang, 1996).
Secondly, the study paradigm of administrative law has un-
dergone a change from static to dynamic with the development
of research. On one hand, the theory research for the acts was
only statically investigated for its legal effects in administrative
law in the past. And its establishment was not fully focused on.
The types of individual administrative act were often inde-
pendently analyzed, but the macroscopic administrative acts
were not investigated in the realization of macroscopic admin-
istrative purpose. It is often emphasized for one party’s legal
status of administrative subject, and ignored for its counter-
part’s idea that play important role in the final generation of
administrative decision’s legal effect (Zhou, 2006). On the
other hand, the perspective of observing problems in this theory
of static act types study paradigm is certainly that administra-
tive investigation as a so-called factual act will be excluded
from the types of administrative acts. Now, it is only regarded
as an activity of administrative subject to collect evidences
according to authority, but not as process and opportunity to
provide claims and protect the legitimate rights and interests for
specific counterparts. However, its meaning and nature are
changed with the emergence of a recent study for administra-
tive process theory (Shiono, 1999a). Its purpose is to break the
traditional study paradigm for its activities are statical and local
in the administrative law. And the act will be not made hard
segmentation. Administrative activities to realize its purpose
are regarded as a dynamic process continuing the beginning and
the end and make examinations from many perspectives, so as
to obtain a more scientific and more systematic explanation to
administrative phenomena (Zhou, 2006). So, it should not be
excluded from the system of the concrete acts and from the
legal area.
Thirdly, discretion was bound to exist in concrete adminis-
trative act. Why are there so many discretions in the process of
administrative investigation? Three reasons were proposed by
Davis. 1) The abuse of discretion itself is caused in administra-
tive by the organs’ pursuit for powers. 2) The rules were ab-
sent for various reasons. 3) Discretion may be helpful for the
individual justice and the realization of the real rationality of
law. Therefore, it can be seen that the discretion act except
pursuing power are a double-edged sword, which can not only
give rise to tyranny and infringe upon the rights and interests of
individuals, but also may be helpful for the realization of Indi-
vidualized Justice and Creative Administration required in dif-
ferent case. However, how do promote this power to be exer-
cised in a rational way (Zhu, 2006)? Because its specific act
embodies the operation of the state’s administrative power and
aims to realize its administrative goals. It is the administrative
subject’s legal behavior on the premise of owning their power.
It is generally recognized that discretion is thought to be the
act’s power decided by administrative organs according to the
goal, spirit, principles, scope, and administratively rational
principle of rule of law provisioned by the laws and regulations
empowering them and based on objective facts. So, the admini-
stration discretion has almost become the pronoun of the execu-
tive power (Zhang, 2001). A large amount of discretionary acts
must be contained in it if the investigation is concrete adminis-
trative act and embodies its power. The discretionary acts are
also called as cheap discretionary acts. It refers to the legal
norms only stipulate the principles, and authorize administra-
tive subject independently take corresponding measures and
make consideration and decision acts under the premise of ac-
cording legislation purpose and law principle. However, the
ideal legal activists have to confront with such a fact—the
place where law is terminated is where discretionary acts make
progress (Wang, 2002). Because of the limitations of legal rules
to the adjustment of social life, the discretionary acts in admin-
istrative investigation are naturally contained in the rule of law.
In the modern administrative countries, people have realized
that administration according to law in a strict sense cannot be
pursued, but also is not appropriate for desired seeking. How-
ever, endless social relations of continuous evolvement can be
constantly adjusted no matter laws are created in an advanced
and planned way or continuously established through the
ceaseless accumulation of the rules of law. The sufficient
knowledge on future is not owned by people based on an as-
sumption of limited knowledge. Therefore, Davis repeatedly
emphasized a fact, that is, the legal rules and the discretion are
in coexistence at any legal systems in history (Wang, 2002).
Roscoe Pound also proposed in an empirical and inductive way
that there was no a legal system that could achieve justice only
relying on rules but not on discretion, no matter how rigor and
specific its rule system was. Two aspects of the rules and the
discretion will be involved in the process of implementing jus-
tice (Shiono, 1999b). This is also a dilemma for people to have
to confront with.
Significance—Realization of the
Self-Discipline Principle
As above mentioned, it is the specific act. The discretion ex-
ists in all steps of the material and procedure behaviors. As a
special concrete act, some acts such as arbitrary investigation
will not make the rights and obligations of administrative
counterparts change, increase or decrease. However, from the
perspective of theory for dynamic behavior types, the inalien-
able relevance between arbitrary investigation and administra-
tive decision to be globally and dynamically observed is a stage
or a procedural link indispensable for a complete administrative
decision. From the perspective of an increasingly growing trend
in administrative law, the function of administrative law is not
to guarantee the individual autonomy. And it is providing a
political process to ensure the widely-affected interests in ad-
ministrative procedures to be fairly represented (Richard, 2002).
That is a hidden concrete administrative act and covered with a
layer of tender veil. In order to lift the layer of veil, violated
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Y. YANG
Copyright © 2013 SciRe s . 115
discretionary acts may be caused by resistance for us, and even
a higher pursuit will be emerged. We should have our own
strategies to achieve the requirements of different instances of
the individual justice and creative administration.
The judicial review will always be a mainstream effective
method to limit the discretion from the view of both the conti-
nental law system’s self-discipline theory and the Anglo-
American law system’s power controlling method. In fact, there
is another different development trend except the above-men-
tioned system arrangement to achieve the purpose of control
through external system’s function, which is that administrative
power limits the system forms of investigated space in a self-
discipline way, namely the self-discipline of discretion. From
the perspectives of controlling the discretion and preventing its
system construction, it is the common trend that the discretion’s
scope and purpose are carried out the judicial review by judicial
powers in administrative petition. Meanwhile, it is especially
necessary to pay attention to that power limits the system forms
of investigated space in a self-discipline way. The self-disci-
pline, namely the procedure standard is the realization of the
self-restraint principle. Its self-discipline principle refers to the
principle that its subject would be constrained in the same all
cases, and the same decision or the similar measure are made
for the relevant administrative counterparts according to the
front decision and measure if administrative subject used to
make certain decisions, take certain measures or have been
ascertained by case law in a case. As mentioned, the investiga-
tion is mainly reflected in the procedural administrative act.
Legal and reasonable procedures are guaranteeing for individ-
ual rights and interests, and therefore the procedure standard as
self-discipline should be established. The standard is not only
the law of self-discipline, but also the law of power controlling.
For example, a self-discipline system was established in the
Administrative Procedural Law issued by Japanese in Novem-
ber 1993 and also the organs were required to make and prom-
ulgate the standard, thus setting up a set of written statutory
obligations for the self-discipline from the perspective of pro-
cedure legislation (Shiono, 1999b). The internal procedure
standard for the investigation is the basic standard that preset by
administrative organs and provided for the judicial review. It
can be carried out the internal control or achieved the self-con-
trol for the discretionary acts in this investigation. From the
above mentioned, it can be seen that the internal procedure
standard of the investigation has to be established as follows. 1)
Fortification has to be made for its self-discipline function to
prevent the arbitrary administration. 2) The applicable standard
is made by the subjects for the investigation acts, so as to
abandon their arbitrariness in judgment and practices, ensure its
rationality and reduce moral risks. 3) The standard should be
established and published to allow citizens to possibly predict
the corresponding investigation act. 4) The standard shall pro-
vide a certain measuring standard for judicial review to im-
prove judicial efficiency (Karlllewellyn, 1960). 5) In this di-
chotomy situation of the rules-discretion, to achieve the indi-
vidual justice and the creative administration will ultimately
safeguard the individual rights and interests for citizens. Its
essence is also the effective harmonic methods between the
strict constitutionalism and the discretion (Hartmut, 2000). The
principle is focused on the restraint for the standard, decision
and measures based on the administration itself. These standard,
decision and measure were always shown in the previous cases
through the explicit instruction or implication of the subject. At
the same time, it will be more and more widely applied for the
procedure standard that can embody the principle.
Conclusion
As mentioned, it is not true to put all practices of the admin-
istrative act under the legal regulation. So, it is without saying
for the discretion that exists in many fields. The principle is
premised under the existence of administrative discretion, and
expands the post-intervention scope of courts to exercise their
discretion’s power from the perspective of protecting private
rights. In conclusion, both of the concrete acts and the discre-
tion should be controlled. And it is more worth guarding for the
investigation act as it is a special and concealed concrete act
covered with a layer of tender veil. The procedure standard that
reflected the principle may be the effective self-discipline and
power controlling rules like the judicial review.
REFERENCES
Fang, S. (1996). Discussion on the specific administrative acts (p. 144).
Wuhan: Wuhan University Press.
Hartmut, M. (2000). General expositions of administrative law (p. 466).
Beijing: Law Press China.
Karlllewellyn (1960). The common law tradition: Findings of fact and
applicable discretionary factors of law in the judicial process.
Richard, B. S. (2002). The reconstruction of the administrative law of
the United States (p. 2). Beijing: The Commercial Press.
Shiono, H. (1999a). Administrative Law (pp. 63-67). Beijing: Law
Press China.
Shiono, H. (1999b). Administrative Law I (2nd ed.), Yuhikaku.
Liu, W. J. (2004). Discussion on administrative forced inspection.
Journal of National Prosecutors College, 1 , 16-25.
Wang, X. X. (2002). Free discretion and administrative justice—
Reading the discretionary justice of Davis. Peking University Law
Journal, 1, 11-22.
Yang, H. (2000). Discussion on administrative investigation. Adminis-
trative Law Review, 2, 6-9.
Ye, B. F. (2005). Classification of administrative action: Notion recon-
struction or thoroughly overhauling. Tribune of Political Science and
Law, 2, 170-172.
Zhou, Y. Y. (2006). Administrative investigation of action process—
Investigation in a new research paradigm. Studies in Law and Busi-
ness, 1, 129-136.
Zhu, M. (2006). Discretionary standards system of “Japanese Adminis-
trative Procedure Law”—As the internal composition of procedural
legitimacy security device. Journal of the East China University of
Politics & Law, 1, 73-79.
Zhang, J. S. (2001). Discussion on the principle of administrative open-
ness. Studies in Law and Business, 5, 62-65.