Research On Jilin Province Freeway Road Administration Management Discretion

With the deepening of the concept of administration according to the law, especially the publishing of the State Department"Boost the Actualization Compendium of Administration According to the Law",the administration main body pays more attention to the quality of the administration execution of law and ensure the legal rights of the administration management related people not to be invaded. But administration discretion as an important method of administration authorities actualizes effective administration management,attract people's attention increasingly. In the freeway road administration management work of Jilin Province,there still exist some discretion administration actions,research on these actions, control and criterion its fair, reasonable exertion and then realize legality administration, reasonable administration, formality justice, high efficiency convenient people and the basic requirement of administration according to the law has some theory and actual meanings.The first part of this article introduces the basic theory of administration discretion.First, it introduced the produce and history development of administration discretion. Administration discretion is created with the infiltration of society affairs of the nation,the overall development of administration power and infiltrate to all the aspects of society life,gradually developed with the expand of government functions and administration power. Since administration discretion on one hand has made the administration authorities ensure the order needed by the development of society economy,on the other hand it also means that the freedom and rights of the administration relevant party might have been restricted unreasonably. So, we must set up one kind of system to control and restrict the administration discretion,make it reasonable, fairly exertion and prevent it from being misused.Second,introduces the legal definition of administration discretion. This part simply introduced western scholars such as Davis(K.C.Davis),Wade(H.W.R.Wade), Forsyth(C.F.Forsyth) and Dube judge etc. people , about the definition of administration discretion,and consequence the actual meanings of administration discretion is one kind of choice on the basis of judgment. Then did some introduction on the scholar of our country about the definition of administration discretion and emphasized in introducing the definition of administration discretion of Yu Lingyun's——under the situation that the law permits, the choosing rights for qua or nonfeasance and how to qua.Finally expatiates the existing foundation for administration discretion, that is to offset the localization of administration law itself, the need of further strengthen the government administration management functions, solve the contradiction of law in reality usually equity and exceptional inequity as well as the internality need of rationality principal of the administration.The second part of this article introduced the current situation and the existing problems of discretion of Jilin Province Freeway Road Administration Management,including contents of four aspects.First,expatiate the definition of freeway road administration management,is freeway administration management, that include the management of maintaining, fee collecting, protecting, communication and service. Based on this, extend the necessity of discretion existent in freeway road administration management: the first is the universality of freeway road administration management;the second is the complexity of freeway road administration management;the third is the morbidity of laws and regulations on freeway road administration management.Second, introduces the behaving form of Jilin Province freeway discretion:discretion in the admission of administration, the discretion in administration punishment, discretion in administration compel and the discretion in administration treatment and administration monitoring and inspection.Third, expatiate in details the major problems existing in the discretion of Jilin Province freeway road administration management. They are mainly:the morbidity of transportation administration laws and regulations lead to the exertion irregular in the discretion of freeway road administration law executing; the irregular of the qualification of the tipstaff of freeway road administration leads to the different understanding of discretion;the faultiness of management system and monitoring system,the disadvantage control on discretion and the improper use of discretion.Finally, introduced the damage of improper use of discretion:easily infract administration management relevant people or the legal rights and interests of the third party;engender power rental, incubating administration corruption, damage the fame of the department;fluctuate people's legal belief;go against the society harmony and stabilization.In the third part of the article, it brought up the countermeasure of criterion freeway road administration management discretion,including contents of two aspects.First, the exertion principal of freeway road administration management discretion,the first is the exertion main body of administration discretion, right limitation and formality legal principal;the second is rationality principal, including pertinence principal, necessity principal and proportion principal.Second, expatiate the countermeasure analysis on criterion freeway road administration management discretion,specifically includes:The first is,when freeway road administration legislation setting up the discretion, they should insist in the seriousness of the setting. Limit and lessen the administration main body to participate in the drafting and revision of local regulations;in the setting of specific discretion, we should insist in the clarity and appropriateness of the setting and deal with clarity and ambiguity, crude and fineness and the relation of qualitative and quantitative;in the application explanation of local laws and regulations,we should clarify that it should be carried through by the legislation making authorities——Local People's Congress Standing Committee;perfect formality legislation,improve the specific administration action formality,criterion the discretion formality.The second is,when carrying through the discretion, the freeway management organization and their law executing staff should insist in the implementation of the legitimacy, correctly master the substantive rules of administration discretion,the exercise of specific conditions should meet the actual situation for discretion;choose from several legal plans,discretion in the range of discretion of legal main body, scope and kinds;there is no clear regulation in law regulations,appropriate discretion is in line with the principles of law. The rules of the exercise should be in accordance with the statutory rate, scope or within the handling way,only under the condition of free discretion, the power of discretion can be exercised that meet the legal spirit, justices and public order and good customs. Exercise discretion should consider legal norms and the conflict of social development and the spirit of law, the value tropism of legal justness, legal thinking and theory,discretion should consider society effect, not consider about personal relationship, power and influence etc. not relevant factors, improving the related formality system(information publicity, apprize and explain the reasons, aging systems etc.). Importing precedent leading system,setting computer auxiliary discretion system,entirely carries out the formality mechanism of discretion of executing the administration law.The third is to intensify the validity of monitoring on freeway road administration management discretion. Mainly including setting up and perfecting discretion quantify system(including the evaluation on the effect after the setting up of discretion of administration law execution, the evaluation and inspection system for files of law executing cases), put on record system, argue type of law executing amanuensis system and administration responsibility of law execution and strengthen the misjudged case went behind system for executing the law of administration.