On The Regulation Of Administrative Penalty Discretion

Since early20th century, especially after World War II, the executive power,which is widely involved in social and economic life, has become the most active andpowerful form of state power. But there exists no power that will not be abused, andthis tendency is more possibly to appear when the administrative body needs toconduct behaviors, especially encountering the blanks of statute. In recent years,either the theoretical circles or the academic circles dig deeper and deeper in the studyof administrative discretion. Some scholars believe that administrative discretion hasnot only become a significant symbol of the reformation of China’s administrationand the rebuild of the government, but also been regarded as the importantinstitutional innovation of science, democracy and justice in public field. Especiallyin the areas closely related with people’s lives and those where administrative penaltyare often encountered, phenomenon like "same cases but different penalties,sanctioned but unreasonable, favors mattered, attitudes mattered" and others on abuseof administrative penalties discretion abound, and this results in a denial of justice.Thus, there is a time that the discussion and practices about how to limit discretion ofthe administrative penalty is everywhere.While the phenomenon of administrative punishment abuse has emerged, thereis still the necessity for its existence. Jiang Bixin once took a simple example:"legislation cannot disregard the changing circumstances. The world is changingevery day and night. The situation differs from place to place. If you use a model toregulate all behaviors, or use the current requirements to regulate futureadministration, things will be very difficult."So legislators usually leave some roomfor discretion in its legislation that law enforcement can vary according to certaincases to ensure the unity of form and substantive justice. But a large number of abuseof administrative punishment arose in practice have sounded the alarm for us. Thiscontinuing situation is not only contrary to the construction of constitutionality, butalso contrary to the building of harmonious society.And more importantly, it is likelyto cause the infringement of relative legal rights, which will lead to their distrust of state power-in particular-the executive power and damage of the government’s imageand credibility. It is not conducive to promote the development of China’s current"government-lead" model of administrative reform. Therefore, the discretion ofadministrative penalty regulation has become one important task for the wholecountry and society.Montesquieu said,"All people who hold the power will easily abuse it. This isan eternal and unchangeable experience. People who have power are likely to use ituntil encounter a boundary." These words have been regarded as truth throughout theages by scholars. In order to ensure the orderly operation of state power and to ensurethat legal interests of the public are not violated, the world as a whole is committed tofinding the boundaries of the practices of executive power, and focusing on how toeffectively regulate administrative penalty discretion. We have made a series ofachievements.Overall, the regulation for the discretion of the administrative penalty can bedivided into internal and external regulation. External regulations mainly depend onthe factors outside administration, such as legislative regulation, judicial rules.Legislative regulation is mainly through the development of accurate and detailedlaws and regulations, using definite rather than vague language, to define the degreeof discretion exercised by administrative penalties, procedures and methods as muchas possible, within a certain framework; judicial rules are mainly through the reviewthat whether discretion of the administrative penalty is exercised legally and whetherthe loss of justice is apparent to ensure the afterwards relief for the abuse of discretionin administrative penalties.Internal regulation, also called self-administration, administrative self-regulation, making its administrative internal factors as the starting point, refines thevague law through the development of an administrative penalty discretionbenchmarks, which has strong operability, and is the specification of the principle ofproportionality in administrative penalty area; Establishing administrative penaltiesguiding-case system to provide a reference for future administrative punishment-"same circumstances, same process; different circumstances, different treatment"-isbound by the principle of self-administration of the inherent requirements; at the same time, as law enforcement officers is the ultimate enforcer of administrativepunishment, combined with a related accountability is to stimulate legitimate exerciseof its inherent discretion of the administrative penalty and potential power.But whether it is an external regulation or an internal regulation, to befragmented or mutually exclusive is not allowed. external regulation administrativepenalty discretion provides a prerequisite and condition for internal regulation,otherwise the administrative penalty discretion will be out of control,and internalregulation cannot effectively play its preventive role of risk and show the ability ofself-correcting. Similarly, this mandatory requirement from the outside, often doesnot really contribute to a reasonable run of administrative discretion, once it breaksthe shackles, the consequences can be disastrous, then the spontaneous internalregulation will play a real role in escorting. Thus, in practice, the administrativepenalty discretion external regulations and internal regulations should organicallyunify and join together.