Research On The Discretion Of The Administrative Penalty

Administrative punishment in the discretion is the concept of administrative punishment, discretion, is the administrative authorities in the scope of the legal authority, based on the principle of legality, rationality, freedom to identify the administrative relative person's behavior is illegal, decide whether to impose administrative penalty, and according to the circumstances and other factors, determine the type, magnitude, time limit and other specific content of administrative power.The existence of the discretion of administrative penalty is the inevitable requirement of the rapid development of the society, effectively make up the limitation and lagging of the law itself, is conducive to the realization of the law and the double pursuit of "efficiency" and "benefit". However, the impact of historical and practical reasons, to varying degrees, there is a phenomenon of the abuse of administrative penalty discretion. In the history of our country, the rule of man than the rule of law, the concept of ingrained human society, legal consciousness; and discretion between legal and illegal, reasonable and unreasonable elasticity, which has its own characteristics of "free flexibility", which led to the discretion of administrative penalty in legislation there is a larger space, discretion; secondly, uneven our comprehensive quality of law enforcement personnel, the relevant supervision system is not perfect, which to some extent caused by the abuse of discretion, the administrative relative person's legitimate rights and interests of the state, causing damage to the credibility and image of the government, which caused the damage damage to the social fair legal environment, encourages corruption phenomena.Under the background of China's rule of law society, to prevent the abuse of administrative penalty discretion should be from the administrative law enforcement in advance, in the event, after the three point of view. First, in the standard of the basic principles of administrative discretion, in advance, the region should establish the standard system of administrative penalty discretion, secondly, improve the administrative punishment of the specific procedures system, so that the discretion in the exercise of the process, subject to various system constraints; finally, establish and improve the supervision mechanism, internal supervision and external supervision. In the administrative penalty, the discretion of the discretion is set up to the exercise, from the exercise to the supervision, the various stages are subject to restraint, to promote the exercise of power to better achieve the purpose of legislation.