Research On The Discretionary Standard System In Administrative Penalty

Administrative discretion, as an extremely important phenomenon that exists in theory and practice of administrative law,it is taken as a"hot potato"that administrative law scholars cannot avoid. For many years, issues about Administrative discretion had been widely discussed and studied, and the very issue that how to control the administrative discretionary power is an especially important one. The reason is that, to restrict that kind of power too narrow or too wide will do no good to the performance of administrative power, at the same time, even increase the risk of invading the reasonable rights of the administrative counterpart. As a newly-emerging tool which aims to control administrative discretionary power, especially administrative discretionary power that exists in administrative penalty, discretion standard becomes a widely concern between both theorists and practice workers in administrative law field. How to restore the cause of emergence, nature, validity and future of discretionary standard, has been not only helpful to further explore administrative discretion and discretionary standard themselves, but also would be useful to promote harmonious development of society.This paper makes some recommendations to improve the administrative discretion in administrative penalty field based on the analysis of administrative discretion and discretion standard, and on taking Zhengzhou's practice an example. The preface briefly states the background and significance of the selected subjects of this paper, introduces the research status at home and aboard, present's research methodology and research tools, and at last summarizes this paper's innovations. In a word, this paper is divided into main four parts as below:By applying comparative research method, the first part focuses on the concept of administrative discretion to under the background of modern administrative law, and summarizes the administrative discretion of extraterritorial theory of two important legal systems of administrative discretion made corresponding comparison. Another is to have administrative discretion administrative discretion governance will be demonstrated.The second part, by applying systematic research method, it firstly analyzes the concept, substance and efficacy of discretion standard, and responds to those detailed inquiry about legitimacy and character of discretion standard. secondly, it puts forward that owing to discretion is extremely widely exists in kinds of administrative penalty fields, the abuse of administrative penalty discretionary power strongly calls for the discretion standard's appearance.The third part, takes discretion standard in the field of administrative penalty as the main object of study, applying the positivism method to trace the reason for the rulemaking of discretion standard in our country's administrative penalty, analyzes the practice of Zhengzhou's discretion standard in administrative penalty field, to conclude the main substance and character of administrative penalty discretionary power in today's China.The fourth part then makes four proposals to perfect the discretion standard of administrative penalty: accurate orientation of its function; rational division of labor among subjects; perfection of administrative penalty discretion self-control system; coordinate the relationship between the various means of control.