Study On How AIC Uses The Power Of Penalty Discretion

Discretion of administrative law enforcement has been the core content of the development of modern administrative law research, that is because the final discretion is made by the administrative officers, therefore, administrative organ itself acts the key role of administrative discretion,? same as penalty discretion. Law administration, law enforcement standardization must be adhered to the bottom line at all the time. Constitution of the People's Republic of China states that all men are equal before the law. This is not only the prerequisite for the law society, but also the most direct means of support for the realization of human rights. When the administrative organs exercise the supervision of law enforcement, it must be reflected the requirements of acting accordance with the law, enforcing law for the people, making justice, serving the overall situation. I have been working on the front line of the law enforcement of Industry and Commerce for many years and find out the in the recent years the Administration of Industry and Commerce has lots of initiatives in promoting the administrative law enforcement and standardized law enforcement. Regards to the abstract administrative behavior, SAIC introduced Decree No.28 & 29 and Shanghai Administration for Industry and Commerce promulgated the "Handling Rules", in many ways to standardize the law enforcement from the procedures and then to protect the legal rights for the parties; Regards to the detailed behavior, Shanghai Administration for Industry and Commerce carried out the regular inspection of law enforcement, quarterly assessment investigation, group discussion in a legal team and etc to prevent the occurrence of wrong cases. It should be said, the behavior from the abstract to the detail, powerfully ensures the Administration for Industry and Commerce act the legal law enforcement and civilize the law enforcement, thus this is a great progress. However, in the handling of penalty cases, we still could see the common or the frequently-occurring faults in exist, such as different degrees of subjectivity in the implementation of penalties, over usage of the authority of penalty discretion in result of the phenomenon of "Lawful but unreasonable, same case but different penalty, same case but different way of action". Why causes that? One reason should be the occupation quality of executive officer, and the other reason may be caused by the unscientific standardized power of discretion and lack of feasibility rules. Therefore, it is necessary to do some further research on the execution and control of administrative discretion to maximize the protection for the legal rights of the administrative count part. This paper is divided into four parts, focusing on the body of Administration of Industry and Commerce. In Part One, I summarized the general theory of penalty discretion and made well preparation for the further discussion in the next text; In Part Two, I used some examples to analysis the existing problems and influence on the penalty discretion nowadays which occurred on the body of AIC and emphasize the necessaries of the exist and control of penalty discretion; In Part Three, I analyzed the law practice of the representative foreign modern law enforcement country; In Part Four, according to China's administrative and supervision system, focusing on the terms of the practice on the administrative penalty, combining with my working experience, proceeding with the internal control of AIC organs, I analyzed how to regulate the power of penalty discretion in four aspects of developing guidance, displaying penalty to public, following the typical cases and using the penalty discretion software.