A Legal Study On The Regulation Of Police Discretion-Experience And Insititutions

This thesis mainly studies on the experience and regulation of police discretion,takes the perfection of traditional regulation structure and the reform of new administrative law as an opportunity,and the institution's substitution of experience as the basic viewpoints.Ultimate goal of regulation is limiting unnecessary discretion and giving full play to the utility of discretion in police activities.This paper describes the facts,laws,action strategies and existing problems of the exercise of police discretion in China by using empirical research,comparative study and legal social science research methods,and reflects on the principles and standards of regularity and judicial review in the approach of traditional police discretion regulation,and takes a preliminary analysis of selective law enforcement regulation.This thesis highlighted probes into the specific institutions suitable for the practice of police discretion regulation in China from two angles: the construction and practice of situational review and the regulation,and effectiveness of police organization reform.Experience is the basis of the theory of Police discretion regulation.Taking the police law enforcement cases and data from 2012 to 2019 as the analysis sample,based on experience and observation,this paper tries to make an empirical study on the "Anatomical sparrow style" of police discretion in the real world.The process and effect of police discretion in the real world,including police discretionary defects and transfers,discretionary stereoscopic orientation based on dual authority,first-line waiver and law enforcement opportunism,unavoidable selective law enforcement,etc.The appearance of these exercises is based on the unique strategy and background of the exercise of police discretion: situational authority and reasonable error under complex pluralistic background,opposites,negotiation,the main interaction of omnipotent expansion,information,technology,space-time and other resource allocation on the limitation and expansion of discretion,risk society and the value ranking of local society.The reflection of principles and standards is the starting point of the research on the regulation of police discretion.First,the reflection of the rule doctrine approach,including the existing space that needs to be perfected,and adverse effects from the excessive rules.The gaps in the rules should be handled correctly.Through the example of regulation to realize the effective transformation of professional common sense,but should properly deal with the relationship between regulatory examples and real cases,develop regulatory interpretation theory,and promote the development of paradigm function.Secondly,the reflection on the traditional power supervision structure.There are limitations to judicial review.Professional policing is not indescribable,nor does it mean that the judiciary is completely out of context review.Through conversational reasoning,as well as relatively open forms of reasoning,the authority can be based on the decisive thinking of the application of law.The subjective and objective review of police discretionary behavior in a given situation requires a clearer review of intensity and criteria.Finally,the reflection of selective enforcement regulation.It should be recognized that the rules cannot be fully implemented and that the selective enforcement or non-enforcement of legal discretion by the police is typed.Restraint mechanisms,including transparency,predictability and accountability.Non-enforcement should be the exception rather than the rule,clarifying the boundaries of judicial review,but the best way to not implement the legal discretion system is to amend the legislation.The police's lethal force discretion is an independent field of police discretion research.Based on the Sheehan case and the typed analysis of typical cases of gun use by Chinese police from 2014 to 2019,this paper sums up the governance disputes and problems such as investigation review,inaction and organizational discretion.The structural equation model of cost-benefit analysis model and influencing factors should be used as the analysis tool to integrate the influencing factors and relations of police gun discretion,and to strengthen the traditional power governance system which is connected by self-regulation,investigation supervision and judicial review of public security organs.And from the perspective of negotiation and regulation,pay full attention to the disclosure and description of police gun norms,policies,practices,data,laws,measurement factors and methods,etc.The police's lethal force discretion regulation strengthens the situational rationality,and the organizational reform as two regulatory approaches with universal significance.The innovations of this article.First,a preliminary breakthrough in the low visibility of police discretion,through the experience of the exercise of police discretion to sum up the facts and laws.Second,the proposal of a preliminary solution based on reflection,such as the typology of selective regulatory system and its standards and restraint mechanism.Third,the selection of two regulatory approaches for intensive cultivation.On the one hand,the construction of situational review.The core value of situational review is the structural analysis of subjective and objective factors in the complicated discretion situation of the police.Summarize the theoretical basis of situational review,connotation extension,extraterritorial experience,the type of situation.On this basis,the cognitive unit and analytical tools of situational review are analyzed,including the objective rationality in the matter and the limited examination of the prohibition of retrospective and individual behavior and subjective factors.The specific analysis path of objective rationality of the situation is summed up,including rational police officers with the same or similar training or experience,facing similar circumstances,making the same or similar judgments;according to all the facts known to the police in the use of force;without regard to their basic intentions or motives;and taking appropriate action in accordance with established law;To effectively balance personal interests with the public interest.Sifting through the historical evolution of subjective limited review principles,to limit the review to the scope of foreseeable ability and direct cause and effect,and to summarize the criteria of subjective limited examination,including obvious incompetence and knowingly intentional,reasonable predictive scope and subjective professionalism,good-faith belief and “the breathing room”,and objective presumption of subjective legality.On the other hand,the regulation efficiency of police organization reform to police discretion.The individual discretion behavior of the police is also embedded in the police organization,the complete police discretion regulation should analyze the operation characteristics of the police organization,as well as the influence factor content sample state,the organization process control into the regulation scope.Professional measures by police organizations to exert influence on individual discretion include the degree of bureaucracy and specialization of the police service,as well as administrative policies.Streamlining the regulatory perfection path of organizational perspective: Index and pressure type system;The effectiveness analysis of the supervision of the section system mainly involves the performance and standard trade-offs of the supervision objectives,the independence,professionalism and neutrality of the control system,low visibility,asymmetry of information,and the loss of the branch layer;Adoption of different organizational reform programmes for police organizations with different objectives and functions;Functional orientation and procedural regulation of policy setting priorities.