The Analysis Of Adjusting And Controlling Administrative Discretion

The regulations of the PRC on administrative penalties for public security, issued on August 28th, 2005,implemented on march 1st, 2006,is the major legal basis for public security to handling criminal cases and punishing the violation behavior of administrate. Since the regulation covers all aspects of society and life, and other laws bears no comparison with its depth, extent and the close relationship with citizens, people pay more attention to the exercise of administration discretion for public security. Though the Regulations on Administrative Penalties for Public Security gives clear criterion to the discretion of constabulary administration,there is still great advancing space. With the development of concepts of human rights,the voice of restricting public rights and protecting human rights is higher and higher; Furthermore, the conflict between citizen human rights and right to administer penalties for police in china is an indisputable fact. Therefore, giving clearer criterion to constabulary administration discretion, especially administration discretion of administrative penalties for public security is a problem needed urgent solution. This dissertation deeply discusses the administrative discretion of administrative penalties for public security and research on how to perfect the control of it to benefit the implement to the regulations of administrative penalties for public security and safeguarding the rights of citizensThis dissertation consists three parts:In Part-1, The writer expounds the meaning, origin, classification,ground rules of administrative discretion as well as the problem of administrative discretion and the necessity of control.Chinese and foreign scholars have given different definitions to administrative discretion. By contrasting the differences, the writer defines the administrative discretion as administrative organ's legal authority of freely deciding whether make or not and how to make administration behavior within extent of authority, principle, the purpose of legal rules, namely, it has a relative standard of degree including according to the law, taking commonweal as purpose, according with procedure, treated equally.Though stating the fact that the constitutional government and the administrative law have developed later because of the inherent limitation of statute law, the writer analyzes the social phenomenon of present administrative affair expands boundlessly and changing frequency being accelerated; meanwhile, the writer realizes that administrative rules and administrative regulation have more oversight comparing with mature civil law and criminal law. Furthermore, the writer has pointed out that it is wrong to managing social affairs purely and strictly according to established administrative rule, and also believes that some one of modern society management affair must be left to administrative personnel to taking the circumstances into consideration for dealing with. The administrative discretion includes discretion affirmed by related law in terms of applied conditions, discretion acted or not, discretion chosen within legal category and range, discretion on the choice of behavior process and discretion under law principle.Administrative legitimacy principle and Administrative principle of rationality are the most fundamental principle of administration discretion. Administrative legitimacy principle requires that discretion must be used within the scope law of law and accord with legal important documents of discretion. Administrative rationality principle demands that the exertion of administrative power should accord with the purpose of legislation purpose, the normal legal principle, internal regulations of the development of things, common general rule in social life daily and general social moral code, which requires that the exertion of administrative discretion not only accords with regulations of legal document, but also accords with the spirit of the law; requires not only behavior form of the administrative discretion is within the law, but also be legal in form, which is more high-level request for discretion.One the one hand,the existence and enlargement of administrative discretion is active role of driving, namely, the operation of administrative discretion play the roles of maintaining public interests, maintaining public order , improving administrative efficiency , meeting the need of society, realizing powers of the state; On the other hand,administrative discretion may damage rights of people and endanger administrative law. Therefore, based on admitting the necessity and significance of administration discretion, we should regulate and control it within the scope of legitimacy and rationality.Part-2, By stating the definition and necessity of administrative discretion in administrative penalties for public security the analysis of existent necessary, the writer has analyzed the category of administrative discretion in the regulations of administrative penalties for Public Security issued currently; the writer has pointed out the problems of administrative discretion in administrative penalties for public security.Administrative discretion in administrative penalties for public security embodies the spirit of law and realizes individual justice, by which the police can resolve contradiction; improve the efficiency of law, promote their specialty and morality standard. Administrative discretion in administrative penalties for public security includes public security's discretion of making certain administrative penalties or not, judging the seriousness of the cases, and choosing object, category and range of punishments under uncertain condition of implement document. Administrative discretion in administrative penalties for public security has many unreasonable factors and the space for improving and upgrading since the regulations of administrative penalties for public security regulate the amounts of punishment on administrative penalties for public security with subjective cognizance but not operation for reference; and the chapter of the supervision of law over-general and rough; besides, the phenomenon of the police abuses their administrative discretion are common.Part-3, By stating the necessity of control administrative discretion in administrative penalties for public security, the writer analyses the control measure of the legislation of administrative penalties for public security in-self to discretion. The integrative network of discretion of administrative penalties for public security if only three systems of supervision, legislation, justice and administration operate reasonably with the help of supervisory.The legislation of the regulations of administrative penalties for public security controls the discretion for administrative penalties for public security, which has embodied the purpose of legislation of restricting the right of police and protecting human rights of citizens; however, there are many problems in the course of operation and implement and it is necessary to establish the control system by reasonable operation of legislation, justice and administration. Firstly, control of legislation: on one hand, giving specific regulation to existent discretion for penalties and strengthens its maneuverability, on the other hand, strengthen the legislation of administrative procedure including perfecting the legislation of administrative compensation results from improper punishment to public security and guaranteeing judicatory organ to exercise jurisdiction. Secondly, reinforce judiciary control: the people's court's judicial review on administration discretion should include not only whether shows impartial or not, but also abusing self's position or not. It is necessary to hold the dimension of breaking the law and improper act. Thirdly, administrative control: establishing police's modern idea of enforcing the law, improving the quality of police, strengthening requires the procedure in the course of exercising the administrative discretion, reinforcing the administration review of administrative penalties for public security, building-up system of consulting precedent step by step. Fourthly, spreading the channel of supervising and perfecting the supervision system of administrative legal system.