| As the application of legislative discretion power or a rule-making power, the legal effect of discretion standard is not from legislature, but administrative agency. In essence, discretion standard is a self-regulation rule which is made by administrative agency. In China, to enhance discretion standard's democratic image as administrative rules, most of scholars believe that rule-makers should take advantage of the procedure of public participation to solicit public suggestions as much as possible. In the practice of discretion standard, this view has been recognized by the majority. However, there is no answer to the question why discretion standard should be controlled by public participation, which is a heteronomous system contrary to the autonomous nature of discretion standard, and no one refers to the answer about what extent to be used and the specific operating techniques of the public participation to the discretion standard. This is not only detrimental to the development of discretion standard, but also has produced many unrealistic requirements about discretion standard in the local laws and regulations. In my opinion, although public participation is probably the first choice because it is a direct public expression mechanism which can offer the form and content of democracy similar to the parliament, public participation should be treated as an alternative rather than mandatory obligation to administrative agency taking into account the discretion standard's self-regulation nature and the administrative costs. In practice, administrative agency should take the quality requirement and acceptability requirement as two main factors, consider the goal of the administrative parties, and then make a choice among the four kinds of public participation mode by the reference to its particularity and the reality, that is, the mode of modified autonomous managerial decision, the mode of segmented public consultation, the mode of unitary public consultation, and the mode of public decision. |
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