A Study On The Balance Between Administrative Punishment Discretionary Basis And Case Justice

The regulation and control of the abuse of executive power are basic requirements for therule of law and heavy responsibilities of the administrative law. However, the practices indicatethat it seems that we haven’t found the effective measures to control the abuse of executivepower and the abuse of the power of administrative discretion has become more and morewidespread in practice, especially in the abuse of free judgment of administration sanction.Because the power of administrative sanction is the most representative power in executivepowers and widely used in social management, so the free judgment of administration sanctionhas been one of the most active powers in the area of administrative execution. In addition, theadministrative sanctions are always concerning the personal、property rights of citizens, so if thepower of discretion has been abused, not only have the civil rights been harmed, but also will thesocial stability be damaged. Generally speaking, it is necessary to find the methods and measuresfor preventing the abuse of free judgment of administration sanction. Under such a background,the criterion system for the discretion of administrative sanction begins to emerge. In fact, theemergence of the criterion system for the discretion of administrative sanction is a verycommendable attempt for the justification and rationalization of the discretion of administrativesanction. This system originally comes from the practices of public security administrativepunishment. On4thFebruary2004, the Jinghua public security bureau pioneered the criterionsystem for the discretion of administrative sanction and introduced it into practice. These deedsbegin the attempt of introducing the criterion for the discretion of administrative sanction intothe area of public security and law enforcement. So the studies on criterion for the discretion ofadministrative sanction have very important meaning to guide the practice.This article, on the basis of comparing several criterion systems for the discretion of publicsecurity administrative sanction published by public security units in different areas, combiningwith typical cases, according to the general theory of the criterion for the discretion ofadministrative sanction, analyses the emergence、development、nature and functions of thecriterion for the discretion of administrative sanction, and lists the most important issues forperfecting the criterion system for the discretion of administrative sanction: first, the effect of thecriterion for the public security discretion of administrative sanction; second, the relationsbetween the criterion for the public security discretion of administrative sanction and judicialreview; third, the conflicts between the normalization of the criterion for the public securitydiscretion of administrative sanction and the case justice. This article suggests that in order tosolve the problems mentioned-above, we should perfect this system by regulating theestablishment subject and controlling technique, reasonably using the proportionality principleand making the procedures of establishment in public.