Value Of Administrative Penalty Discretion To Achieve

Rule of law on administration is the only way to realize the strategy of "rule oflaw", and build a socialist country governed according to law. Discretionary power inadministrative penalty is key to administrative penalty and administration accordingto the law, which, with expansion of administrative power, has developed into thecore of administrative power and an important symbol of rule of law onadministration. In addition, it is one of the core subjects studied in the field ofadministrative law in China. Emergence and existence of discretionary power inadministrative penalty has its origin and rationality, adoption of which by rule of lawon administration is passive, yet, not out of compulsion. In order to realize the valuegoal of discretionary power in administrative penalty, we shall not just regulate thepower, rather, we shall take multidimensional and comprehensive measures.In this paper, the author studied on the value goal of and realization approach todiscretionary power in administrative penalty based on the realistic dilemma of"disorder" in administrative penalty and "difficulty" in enforcement in practice.Starting with the analysis on "The Story of Qiu Ju" in an unique perspective, theauthor summed up the realistic embodiment of improper ways of exercisingdiscretionary power in administrative penalty; and pointed out that the internal causefor "difficulty" in administrative enforcement is due to "illegal game playing" amongrelated parties during the course of administration, while the external cause lies inunreasonable distribution of administrative enforcement powers. Then, the authorsystematically summarized the value goals of discretionary power in administrativepenalty, ie. unity between substantial justice and procedural justice, unity betweenrationality and legitimacy, unity between fairness and efficiency, unity betweendiscretion and administrative penalty enforcement, and put forward the propositionthat its value goals would ultimately be embodied in the enforcement ofadministrative penalty. Based on this, the author put forward the specific approaches to realizing the values of discretionary power in administrative penalty: firstly,rational regulating the power from the aspects of legislation: inside of administrativefield and outside of administrative field: especially, conducting functional separation:clarifying the legal status of Case Verification Committee: and strengthening overalljudicial review of the legitimacy and rationality; secondly, reconstructing the modeof administrative enforcement: allow administrative enforcement power to return toadministration, formulate uniform Administrative Enforcement Law, allow thepeople's court to return to its review function to strengthen supervision and legalremedy, in order to realize balance of rule of law on administration.