The Research On The Discretion Standard Of Administrative Penalty

The design of power operation system is one of the key problems of the administrative law, and the administrative discretion is a crucial. Due to the abstract and fuzzy of legislation, the space of the administrative discretion is too wide. The administrative discretion is exercised optionally, and the administrative body sometimes imposes a unreasonable punishment. The discretion standard of administrative penalty is one means of the self-discipline mechanism, and it plays a pivotal role in advance the country in accordance with law. This paper consists of three parts, namely the introduction, the main body and the conclusion.In the introduction part, this paper firstly introduces the origin of writing. The discretion standard of administrative penalty is applicable widely in practice, so the administrative law scholars have studied this field from shallow to deep. What has been focused on contains the rationality of the discretion standard of administrative penalty, the function of the discretion standard of administrative penalty, the setting technology of the discretion standard of administrative penalty, the appliance of the discretion standard of administrative penalty and so on. Now the discretion standard of administrative penalty has been a hot issue in the administrative law. With all these as a basis, the internal control of the discretion standard of administrative penalty is presented.In the main part, it has been divided into four chapters.Chapter one focuses on the overview of the discretion standard of administrative penalty. The discretion standard of administrative penalty has not only become a common phenomenon in practice, it also has got the attention to the administrative law scholar. However, administrative law scholars have no consensus upon the connotation and nature of the discretion standard of administrative penalty. Through the comparative analysis, the author summarizes the characteristics of the discretion standard of administrative penalty. In order to prevent enforcing the law one-sided or rigidly, the administrative body makes concrete and detailed rules of the administrative discretion within the scope authorized by law. It is different from the administrative discretion, it is a explanatory administrative rule.Chapter Two is mainly about the legitimation of the discretion standard of administrative penalty. The principle of equality in administrative law and the legal reserve principle in the theory of functional structure are the jurisprudence support of the discretion standard of administrative penalty.Chapter Three is mainly about the enactment on the discretion standard of administrative penalty. The discretion standard of administrative penalty needs to be identifies in the system no matter as the subject of the administrative law or as one kind of practice of the administrative law enforcement. For setting principles, the administrative body noticed that in practice when the administrative body setups the discretion standard of administrative penalty, they should follow the principle of equality, the principle of matching fault and punishment and combining education with punishment. When the discretion standard of administrative penalty is setup in China, we need to reference to the principle of proportionality. According to the different purposes, the administrative body details the illegal plots, and finds the distinction in the results. For the setting body, it is quite wide and with the diversity of region and department from the present situation. So the setting body should be strictly limited in the departments of the provincial governments or state council. For the setting technology, it can be divided into two parts. One is "the elements", it means that the refined facts of illegal plots. The other is "the effects", it means that according to the different facts, it need to set different punishment standards.Chapter Four is mainly about the effectiveness and roles on the discretion standard of administrative penalty. About this problem, we should combine it with the nature of the discretion standard of administrative penalty. The discretion standard of administrative penalty is the explanatory administrative rule, but not the source of law. It is trustworthy to administrative counterpart, and the discretion standard of administrative penalty guides significance for discretionary basis to the executive. For the judiciary, the discretion standard of administrative penalty has a reference role.Finally, it is the conclusion. The paper summarizes the main points, and realizes that the world has no perfect system design. The control system of the administrative discretion is an entirety, discretion standard of administrative penalty is one part of it. The only way to solve the limitations of itself is the complementary mechanism of other laws or regulations.