Judicial Review Of Police Administrative Discretion Right

In our existing system and under the social development, the police have been given a very wide range of administrative power. Police Discretion has been deep into citizens'lives. Whether the police can correctly exercise discretion directly influence citizens'basic rights, social stability. In recent years, during the process of exercising administrative law by police, because of the lack of effective control and supervision, police administrative power has been expansion rapidly, which brought a lot of obstacles to the executive power by the police brought reasonably. How to prevent police abuse of administrative discretion has been concerned by more and more scholars, which has been a main problem recently in the field of administrative law. Mostly scholars research this problem from the point of police administrative enforcement basic principle, due process, and through perfecting legislation to protect vulnerable groups, encourage them to control public power by exercising private rights actively, and strengthen the police own moral construction manner. This paper focuses on the judicial supervision and constraint of police discretion. I try to analyze the problems and causes combined with the specific cases happened during the running of the police executive exercise. According to the principle of administration by law, I try to explore ways to improve our police judicial review of administrative discretion. So the citizens'basic rights can be safeguarded better from illegal infringement, and at the same time it can help to provide more powerful legal remedies for them. There are three parts in total in the article.The author mainly firstly describes the definition of meaning about administrative discretion, the police administration discretion in the domestic and foreign fields of administrative law in the first part of this article. Through the comparison, it shows that the scope of police discretion refers only when the laws and regulations do not be explained clearly, the police accord to their understanding of laws, rules, to choice of time, behavior scope and related procedures. Police administrative discretion is usually performed as the identification of the nature for the illegal activities, the selection of administrative procedures, the executive action to choose, as well as in the case of ambiguous provisions, the choice of time for the polices'action. However, to some extent, only in the state does man have a rational existence. The reason for legislators endowing police discretion is to pursue the intent essential of executive power which is highly efficient and convenient for citizens, and to realize case justice. The existence of the police administrative discretion is needed for the following reasons such as the stability and abstract of legal, the idea limitation of the legislature, the nature of sudden and dangerous for police work, and the not balance regional development condition in China. However, any power without restriction will face the inevitable expansion. The double the natural properties for police power, lead to public security department often use judicial and administrative powers mixed, which provide opportunities for the abuse of administrative discretion. Inappropriate behavior of police administration, timing discretion improperly, and improper process of exercising police power are most common form of police abusing discretion.The second part introduces the discretion of police judicial review of legislation firstly. The author summarizes the relevant provisions about the executive discretion in the "Administrative Procedure Law of the People's Republic of China", definite the restrict principle of legality as the main criterion for judicial review, only retain the principle of rationality to review the "abuse of power" and "unfairness" of specific administrative acts. Imperfect legislation is the main reason for the problems existed in the judicial review. There are some main problems existed in the judicial review of administrative process as following: First, the specific review criteria unclear; Second, deficiencies in the mechanisms of judicial sanctions; Third, the weak intensity of judicial review. The main reasons for these problems are the weak idea of administrative law, the inadequate propaganda of administrative law, and the thinking deep-rooted that officer should not be concluded by people which leads that people lack rights awareness. Legislation about judicial review is crude which makes the lawsuit about against the right of citizens by specific administrative activity which is legal but improper often rejected according to the principle of strict legal review. Imperfect legislation is the root cause for weak judicial review. Executive power prominent obviously. Executive power is better than judicial power is the major difficulty during the process of chief court trial. Therefore, the people's court is more passive when dealing with the trial of administrative cases, and more passive. Finally, the author compares and analyzes the judicial review of administrative discretion of the police in the major Western countries and draws some inspiration for us to use for reference. The principle of proportionality of the Police originates in Germany which means when the police exercise executive power, they should select the behavior with minimal invasion and restrict the people's rights and freedoms as small as possible. The United Kingdom control the exercise of police discretion using the principle of action exceeds One's authority is action invalid .Writ system is one of its main features. After the United States adhering to the tradition of the writ system of right in British, he received much development. Writ system will be included in the constitution. Citizens have the right to act against their basic rights to draw Constitutional Review.In the third part, the author aimed at how to perfect the judicial review of police administrative discretion and pinpoint five proposals as following. First, how to improve the legislation, "the Administrative Procedure Law" stipulates legality review principle of administrative acts strictly. Only a small number of legal but unreasonable administrative activities can be restricted by the "Administrative Procedure Law" according to the reason "abuse of power" or "unfairness". But they are lack of clear legal interpretations. Existing laws mainly censor administrative behavior afterwards. The rules lack provisions which regulate the activity of the police prior and during events. The author thinks those provisions should be perfect. In the aspect of judicial review principles, besides legitimacy Principle and rationality principles applicable as administrative basic rule, we should not only reference Germany Administrative specific examination standards, but also draw into proportion principle parallel and review the police administrative activity for the propriety, necessity, legal interest proportionality. judicial review content perfect aspects, author hold the view that such a special administrative behavior as police administrative discretion behavior, court should besides according to the proceedings to censor general evidence, he shall highlight review the nature of the illegal facts granted by police, the interpretation of some relevant uncertain legal terms, and whether the administrative activities have been delayed unreasonably. In the aspect of judicial review standards, with regard to the special character of subjective discretion, it should develop more feasible, more specific standard of review to examine the appropriateness of police conduct. The count should review whether the police power of discretionary activity is done with the legislative purpose, whether police discretionary activity is fair, and whether the police are influenced by other factors inappropriate to exercise of discretion. Finally, from the point of improving the judicial review process, the reason for the author to pay attention to improve the process is the procedures not only play a role of tool in recent years, but also it has the greater value of protecting justice. According to the article 54 of China's current "Administrative Procedure Law", if a specific administrative act has been undertaken in one of the following circumstances, the act shall be annulled or partially annulled by judgment, or the defendant may be required by judgment to undertake a specific administrative act anew. However, we do not like the common law countries, according to the rules of natural justice, derived a number of related obligations. Therefore, specific procedures should be improved– administrative avoidance System, administrative hearing system, expressing reasons system, to increase efforts to increase the intensity of judicial review and restrict strong police powers.