On The Regulation Of The Discretion Of The Traffic Police

China's road traffic safety laws and regulations clearly stipulate that traffic policemen have discretion in the process of law enforcement,but in the process of exercising this discretion,there will be problems such as arbitrary law enforcement,excessive punishment,obvious inequity and so on.Therefore,how to regulate the discretion of traffic policemen in law enforcement to achieve the unity of law enforcement effect and social effect is the focus of this paper.This paper theoretically analyses the necessity of regulating the traffic police's discretion,combs the existing laws and regulations concerning the traffic police's discretion in law enforcement,summarizes the current situation of the implementation of the discretion in traffic police law enforcement through specific cases,and finally introduces the relevant theory of the principle of proportionality,and puts forward how to effectively regulate the exercise of the traffic police's discretion.Some legal suggestions were put forward.The first part of the article elaborates the legal basis and types of traffic police's discretion in law enforcement.This part holds that the discretion of traffic policemen in law enforcement refers to the power of traffic policemen or traffic management departments of public security organs to exercise discretion in specific administrative law enforcement in accordance with the powers conferred by laws and regulations.Traffic police's discretion in law enforcement has relatively clear provisions in relevant laws and regulations in our country,among which the main legal basis is the Road Traffic Safety Law of the People's Republic of China and the Implementation Regulations of the People's Republic of China on Road Traffic Safety Law.In addition,there are such provisions in local regulations and departmental regulations.The content of discretion is mainly reflected in the types of penalties.The scope,the seriousness of the plot and the nature of the behavior are also discussed.The second part of the article aims to summarize the abuse of discretion in traffic police law enforcement through the analysis of typical cases.Through analysis,this paper argues that the abuse of discretion by traffic policemen is mainly manifested in arbitrariness of law enforcement,obvious unfairness,delays in the implementation of law enforcement and so on.The third part of the article mainly carries out a detailed analysis of the problems and hazards of adopting discretion in traffic police law enforcement.It is found that due to the inconsistency,unpredictability,non-accountability and low visibility of traffic policemen in the use of discretion,arbitrary abuse of discretion not only has a greater negative effect on the administrative subject,but also harms the interests of the administrative counterpart.The fourth part of the article introduces the principle of proportionality,and further introduces the principle of proportionality into the field of administrative law through the introduction of the principle of proportionality.It holds that the sub-principle of appropriateness requires that discretion must have legal basis or authorization to achieve statutory administrative purposes.The sub-principle of necessity requires that discretion should choose the means of minimizing damage,and the sub-principle of balance requires that discretion should consider the relevant reasons.We should take into account the interests of all parties.The fifth part of the article puts forward how to apply the principle of proportionality to guide concrete practice from three aspects of legislation,law enforcement and judicature.This paper holds that introducing the principle of proportionality into legislation scientifically,traffic police should make full use of the principle of proportionality to guide their practice in law enforcement,and should also apply the principle of proportionality to review the rationality of law enforcement in the judicial review process.By taking various measures simultaneously,it is bound to promote the traffic police to exercise their discretion scientifically and reasonably in law enforcement,and to make the best administrative act and achieve harmony by choosing the means of minimal infringement.Legal and social effects.