Research On The Restrictions Of Administrative Discretion In Our Country

With the continuous development of social economy and the gradual improvement of law construction,"administrative discretion" has become the focus problem of common research and extensive attention in theory and practice area of administrative law in China. The administrative discretion in public security administrative enforcement of law is an important part of the administrative discretion, which owns the characteristics of complexity and diversity due to numerous business departments, wide coverage and large range of discretion. If the discretion is applied properly, it can exert the effect to uphold the justice of law and improve the administrative efficiency; if the discretion is misapplied, it will lead to violation of the legitimate interests of the relative people and damage the public interests of the society criticism. Due to various reasons, there are some phenomena with the public security organ and law enforcement officials in specific law enforcement process, such as the improper amount of penalty, lopsided scale, and program implementation is not in place etc, which lead to the abuse of the administrative discretion. And it not only damages the law enforcement image of public security organs, but also affects the construction process of rule of law in public security. Therefore, how to regulate and control the police administrative discretion has become an important and urgent topic in the current administrative law enforcement work of public security.In this paper, the author combines the academic foundation and actual situation of administrative discretion in public security administrative enforcement of law. And through the deep analysis of existing problems and their reasons in the process of applying public security administrative discretion, the author puts forward the suggestions for the regulation mechanism of public security administrative discretion. The thesis consists of four parts:The first part is the summary of basic theory about the administrative discretion and its regulation, the author briefly expounds the definition, forms, existence rationality and the regulation necessity of administrative discretion; The second part initiates our using and thinking about the judicial review and administrative relief system by the experience of using the principle of rationality and due process in the Anglo-American legal system and the principle of proportionality to regulate the administrative discretion in the continental legal system; In the perspective of the public security administrative enforcement of law, the third part points out a variety of improper behaviors and abuse phenomena in the exertion of discretion for public security organs and the law enforcement officials, and analyses the detailed reasons such as the laws and regulations, the norm of the discretion, administrative procedure, judicial review, administrative reconsideration, supervision mechanism and responsibility pursuing; At last, based on the cause analysis and foreign regulation model, the fourth part proposes seven measures to perfect the administrative discretion restriction:to reduce the fuzzy legal language; to push the norm of administrative discretion; to standardize administrative procedures monitoring mechanism; to advance the judicial review system; to perfect the system of administrative reconsideration; to strengthen internal and external supervision and restraint mechanisms; to establish the administrative law enforcement responsibility pursuing mechanisms.