On The Administrative Discretionary Power Of The Customs

With the incessant increase of the customs functions in recent years, the scope and the varieties of the administrative discretionary power of the customs are also expanding unremittingly. Being the core of the customs administration power, the administrative discretionary power of the customs answers to the need of modern customs administration that facilitates positive administration, also contains possibility and is prone to show facts of being abused from which great damages can be subsequently caused. So, the efficient control on the administrative discretionary power of the customs seems to be more important. This text aims to probe into more efficient control on the customs administrative power of discretion and does overall argument and elaboration by four aspects.Chapter One Basic theories of the administrative discretionary power of the customs. The administrative discretionary power of the customs is the materialization and extension of the power of administrative discretion in the customs departments, which refers to the power to make just and reasonable administrative decision after free selection, according to the duties and authorities endowed to the customsby the law and the administrative regulations, based on the goal and spirit of the law, the administrative regulations and the administration and aiming at the customs administrative legal relations. The administrative discretionary power of the customs has the features of legality, direct subordination, flexibility, unilateral will, relativity and extensiveness. According to different legal attributes of the administrative actions, the administrative discretionary power of the customs can be divided into the abstract power of administrative discretion of the customs and the concrete administrative power of discretion of the customs. According to the constituent components of the customs administrative actions, it can be divided into power of discretion in free action condition judgment, power of discretion in free administrative decision making and power of discretion in selection of administrative action procedure.Chapter Two The existence foundation and exertion principles of the administrative discretionary power of the customs. A certain degree of administrative power of discretion owned by the customs is codetermined by the law theory reasons such as the influence of the motile law rule thought, the disadvantages of the statute law, the stability and the laggingfeature of law, and China's actual conditions, features of customs administration management, and the reality of high efficiency and innovation needs. The administrative discretionary power of the customs cannot be used at will but should abide by principles of administrative legality and rationality. The principle of legality requires that the administrative authorities of the exertion party must be set by the law and endowed according to the law and be exerted according to the administrative law and regulations, with a condition that illegal administrative action should be invalid and the responsible must assume relevant legal responsibilities. The principle of rationality includes four aspects i.e. the principle of pertinence, the principle of necessity, the principle of proportion and the principle of equality. In the exertion of the customs administrative power of discretion, the following things must be realized: conformity with the aim and the original intention of the law, out of reasonable and just motive, dealing correctly with various factors, abiding by stipulated administrative procedures and justness and high efficiency.Chapter Three The possibilities and manifestation forms of abusing the administrative discretionary power of the customs. The administrative discretionary power of the customsis highly prone to be abused due to reasons such as excessive authorization, incomplete customs legal system, insufficient procedure legal system construction, the general quality and ability defects of the customs personnel, etc. The abuse of the administrative discret...