Research On Administrative Discretion Benchmark Of Urban Management Law Enforcement

Administrative discretion is a necessary way for the operation of administrative power,and it is also a key area of administrative control.With the development of the administrative rule of law and the promotion of the construction of the rule of law government in China,the state encourages administrative organs at all levels to actively formulate discretionary benchmarks to achieve administrative self-discipline and reasonable administration.Under this background,all levels of urban management law enforcement agencies have also formulated and issued various types of urban management law enforcement administrative discretion benchmarks.But at the theoretical level,does the urban administrative law enforcement discretion benchmark have the necessity and feasibility of its formulation? What is its theoretical basis? What is its legal status and nature? The theoretical issues have not yet been harmonized;at the practical level,the formulation of administrative discretionary benchmarks for urban management Specific systems such as procedures,specific content and applicable specifications have not yet been established.Faced with the blank of research in this field,it is urgent to consolidate the legal basis of the administrative discretionary benchmark system of urban management law enforcement from the theoretical level,and to construct the administrative discretionary benchmark system of urban management law enforcement from the practice of urban management law enforcement.At the legal level,the administrative discretionary benchmark for urban management law enforcement is not only a self-made norm for urban management law enforcement agencies,but also an administrative technical norm with certain external effects.In view of the particularity of China's urban management law enforcement administration,China's urban management law enforcement discretionary benchmark system is different from the civil law system's discretionary benchmark system in terms of institutional positioning.In terms of performance,the administrative discretionary benchmark for urban management is not only embodied in the form of a special discretionary benchmark document,but also in the form of a comprehensive administrative norm that can control discretion.In the generation mode,most of the urban management law enforcement discretion benchmarks are self-developed by the urban management law enforcement agencies for self-made needs,and some of the discretionary benchmarks are also affected by external pressure.In the goal orientation,it is only a legislative ideal to formulate a scientific and complete urban management law enforcement discretion benchmark.In practice,it is still aimed at formulating autonomous norms that meet the needs of law enforcement practice.At the procedural level,the procedures for establishing administrative discretionary benchmarks for urban management are not open and transparent.However,with the development of the rule of law,the formulation of the administrative discretion of urban management law also needs to meet the requirements of due process of law.In the process of formulating discretionary benchmarks,the basic principles of discretionary,proper procedures,minimum infringement,public interest orientation and consultation and cooperation should be followed.In the process design,the procedure of motion initiation,text drafting,draft argumentation,voting release,etc.should meet the corresponding procedural requirements.In the participation mechanism,in view of the particularity of urban management law enforcement activities,the formulation of administrative discretionary benchmarks for urban management law enforcement should introduce multiple participation factors such as department participation,community participation,expert participation,and public participation.In the process control,the drafting mechanism of the drafting drafters should be strictly discretionary,and the whole process of the formulation of the administrative discretionary benchmark for urban management law should be supervised inexpensively.The entire discretionary benchmarking process should be properly opened to the outside world,and the discretionary benchmark should be made public after the formulation of the discretionary benchmark.At the content level,the administrative discretionary benchmark for urban management is different from other administrative discretionary benchmarks.At the macro level,the administrative discretionary benchmarks for urban management law enforcement can be divided into three basic types: the basis of the discretionary law enforcement,the benchmark for the aggressive law enforcement,and the basis for the de facto law enforcement.Most of the administrative discretionary benchmarks for urban management law enforcement in administrative practice are based on the specific structure of the aggressive administrative discretionary benchmark.However,the content structure of the incentive urban management discretion and the factual discretion benchmark are different from the aggressive discretion benchmark.At the meso level,the urban management law enforcement benchmark also covers the standards,conditions,types,ranges,methods,time limits,etc.and it is represented by three parts: discretionary matters,discretionary situations and discretionary standards.At the micro level,the formulation of administrative discretionary benchmarks for urban management law enforcement mainly adopts various technical means such as situational design,grid division,function expression and rigid balance,and presents a highly technical development trend.At the application and supervision,the administrative discretionary benchmark for urban management law enforcement is applicable in urban management law enforcement practice and judicial activities.For urban management law enforcement personnel,the discretionary benchmark is the “tool” and “standard” for daily law enforcement.Under normal circumstances,law enforcement activities should follow the measurement requirements of the discretionary benchmark,but in special circumstances,case justice may be considered.For urban management law enforcement agencies,the administrative discretionary benchmarks for urban management law enforcement need to be regularly evaluated and updated,and a systematic discretionary benchmark assessment replacement system is needed.As far as the judiciary is concerned,the administrative discretionary benchmark of urban management law enforcement may become the basis for the court to evaluate the legality of law enforcement actions,and it may also become the object of court review.The construction of relevant judicial review rules needs to balance the relationship between justice and administration.Formulating and promulgating the administrative discretionary benchmark for urban management is a requirement for deepening the administrative rule of law in urban management and is also an important part of the reform of the urban management law enforcement system.Formulate a scientific benchmark for urban management law enforcement,which can be promoted to the acceptability of urban management law enforcement activities and the level of refinement of law enforcement activities.By establishing and perfecting a systematic urban management law enforcement benchmark system,it is possible to expand the theoretical boundary of urban management law enforcement and urban governance at the theoretical level,and also effectively enhance the legitimacy and scientificity of urban administrative law enforcement administrative discretion benchmarks in practice.