The Study On Administrative Penalty Discretion In China

With the modern social and economic development, the functions and scope of administrative departments to manage social life is broader and broader, the discretion to adapt with the changing reality is enssencial.with the expansion of executive power, the discretion is inevitable, it is the core element of executive power. Especially in the areas of administrative punishment, discretion exists in all aspects of administrative penalties, the discretionary space is too large, random enforcement, more and more prominent issues such as abuse of discretion, not only against the administration of the legal rights relative to undermine good social management order, impair the legal effect and authority of public power will also cause immeasurable public image of the negative impact of its negative side can not be ignored. How to make good use of this "double-edged sword"? As much as possible to overcome its negative side is where the intention of this article.This article includes five parts:the first part of the administrative penalty based on the discretion of the theory is the fundamental basis for the entire article.Including the basic concept of administrative penalties, clearly the exercise of discretionary power of administrative punishment should follow the principles, including legal, rational principles, the principle of combining punishment and education, rights protection principles, etc. analysis of administrative discretion exists in modern society the need for and the field of administrative punishment in the expression.The second part discusses the existence of the field of administrative punishment phenomenon of abuse of discretion and the reasons; the third, fourth, fifth part of the administrative penalty is based on the basic concepts and fundamental principles as a guide, multi-angle, multi-level of discretion on the administrative punishmentright of control were more comprehensive.The third part is the discretion of the administrative penalty by administrative regulation, improvement of legislation from the source, namely the establishment of a sound system of control of administrative discretion; control within the administrative system by strengthening the monitoring role of review and establish a precedent for the guidance system, establish a scientific evaluationmechanism to implement the accountability system; program control through administrative penalties, such as improving public administrative punishment system, hearing system, etc.; fourth part is to strengthen the judicial review; The fifth part is to strengthen the role of social supervision, in particular, recent innovations in Hefei referral system--public discussion of administrative punishment system. Above the third, fourth, fifth aspects of the operation of the logical and reasonable to build the formation of a discretionary power of administrative punishment comprehensive network monitoring system.it is the effective way to role of administrative discretion on building a limited power government,responsible government,and constitutional government, then building a harmonious society.