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Taming Police Discretion Under The Reformation Of Policing

Posted on:2008-12-06Degree:DoctorType:Dissertation
Country:ChinaCandidate:W X XuFull Text:PDF
GTID:1116360218961330Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
The exercise of police discretion, which contributes enormously to individual justice, good social order and policing function, lies at the heart of police administration. Under the circumstance of community policing and problem-oriented policing, police discretion has already become an important medium, which improve the transformation from negative administration to positive administration. Unfortunately, current academic research does not pay much heed to it's concept, characteristics, contents and controlling methods.This is a dissertation on police discretion .The purpose is to try to find or devise better ways to regulate police discretion in determing whether and when to enforce particular law. On the basis of an in-depth analysis and research on related experience of advanced nations, this doctoral thesis will propose prudently two ideal types: traditional theory of police discretion and neo-theory of police discretion, which serve as good reference frame and research tool for our own study.The genesis of this dissertation, the current situation of related research, the significance and research methods will be introduced concisely and clearly in the first chapter.The second chapter deals thoroughly with police discretion under the professionalism policing model, which is characterized by autonomy, independenence and rule of law. In this section, it will be concluded firstly that normativism in the public law is the theorectical foundation of the traditional theory of police discetion.Then, the dissertation will touch on specific institutional arrangement especially the judicial review and then make a detailed research on the achievements and problems of this traditional theory.The third chapter copes with police discretion under the circumstance of community policing, which is totally different in policing philosophy. After making a comprehensive research, the dissertation concludes that the neo-theory of police discretion, which emphasizes a positive and active role of discretion, is founded on functionalism in public law. This gives us a new pattern of thinking or a new research paradigm, which is essential for us to deviate from traditional way in order to get a full view of police discretion.Three legitimate models, namely transmission belt model, expercractic model and participatory model are analyzed carefully in the end.The fourth chapter dwells on reconsideration of our police discretion.In this section, the dissertation gives a peripheral background under which the police discretion operates and makes a specific and detailed analysis of current situation of our policing reformation ,namely from pre-professionalism policing to professionalism policing and from pre-professionalism policing to community policing respectively. Then the dissertation proposes that discretion controlling model should be compatible with specific policing model. Finally, the concrete cause resulting in increased discretion will be discussed in detail.The fifth chapter mainly deliberates on regulating police discretion authority. On the basis of detailed analysis of police discretion and it's background, the dissertation gives a proposition that three mode, namely legal controlling mode, expertocratic controlling mode and democratic controlling mode, should be set up in order to conform to different policing style. In other words, legal and expertocratic controlling mode should be applied to the transformation from pre-professionalism policing to professionalism policing meanwhile the democratic controlling mode is applicable to transformation from pre-professionalism policing to community policing.The sixth chapter focuses on the regulation of discretionary authority and on the discretion-exercising rule, which is the most efficient way to regulate police discretion .After expounding the necessity of the compatibility between controlling mode and policing mode and reviewing the related experience, the dissertation concludes that the police administrators should give the highest priority to the formulation of administrative rules governing the exercise of discretion, particularly in the areas of selective enforcement, investigative techniques ,and enforcement methods. Rule-formulation is not only an institution, which integrate legal controlling mode, expertocratic controlling mode with democratic controlling mode, but also a platform where all interests'parties including policy-maker and community can communicate and dialogue. Then, the dissertation proposes that having a set of rules is not enough.What is also needed is the right procedure, mainly notice-and-comment, for developing the rules.
Keywords/Search Tags:policing transformation, police discretion, discretion-exercising rule
PDF Full Text Request
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