On Legal Regulation Of Quality And Technical Supervision Of Administrative Penalty Discretion

Administrative Discretionary power is not just an abstruse theoretical issue in administrative law research in various countries, but also a real problem that administrative subject must handle in managing social public affairs. Quality and Technique Supervision Administrative Penalty Discretionary power is an integral part of Quality and Technique Supervision Administrative Penalty. It’s of great significance to strengthen the research in "quality and technique supervision administrative penalty discretionary power" theory, which will improve the efficiency and level of administrative law enforcement for quality and technique supervision, standardize the administrative behavior of law enforcement, and promote the practice of administration by law. Based on her practice in Zhangjiajie Quality Supervision Department and the theoretic research in this study field, combining with her own thinking on this issue, the author of this paper tries to make some preliminary probes to the concept characteristics, category classification and abuse situation&reasons of Quality and Technique Supervision Administrative Penalty Discretionary power, and makes several suggestions about completing legal regulations on the abuse of this powerIn the first Chapter, the author discusses the concept and classification of Quality and Technique Supervision Administrative Penalty Discretionary power. Quality and Technique Supervision Administrative Penalty Discretionary power is the power exerted by the Quality and Supervision Department, based on Quality and Supervision laws and regulations, to make reasonable judgment on the illegal action of quality and technique supervision, and decide to penalize or not, or how to penalize. Except for the general characteristics, such as subordination to law, relativity of the freedom, suability of the act and special validity, which are shared by Industry and Commerce Department, Drug Department, Tax Department and other administrative departments, Quality and Technique Supervision Administrative Penalty Discretionary power is also characterized by its technical nature, authority in science, Universality and its special exercising subjects-Quality and Technique Supervision Department of different levels. It is primarily divided into the following four categories:Discretionary power on fact determination, Discretionary power on judgment of circumstances, Discretionary power within the legal range and Discretionary power on selection of time limit.In the second Chapter, the author of this paper focuses on the form of expression of the abuse of Quality and Technique Supervision Administrative Penalty Discretionary power and give a brief analysis on the reasons. The abuse of Discretionary power mainly reflected in the following aspects:abuse of Discretionary power exceeding its power, abuse of Discretionary power within power of penalty and waiver and delay the fulfillment of Discretionary power. Reasons for the abuse of Discretionary power include low quality of legal system and defects in substantial system, procedure system and relief system.In the third Chapter, the author of this paper offers four suggestions on completing legal regulation in Quality and Technique Supervision Administrative Penalty Discretionary power:first, to enhance the support ability system and set the threshold for people entrance, strengthen the law enforcement personal training and moral construction; second, improve substantial assurance system, further improve judge benchmark system, establish a quality and technique supervision administrative penalty case precedent system; Third, improve procedural guarantee system, further improve avoidance system, hearing system, collective consideration system, function separation system and so on; Forth, improve relief and guarantee system, further improve the system of finding out the fault liability, administrative reconsideration system, administrative litigation system and so on.