The Traffic Administrative Penalty Discretion And Its Legal Regulation Research

Allowing administrative agency to enjoy discretionary power according to law can enable them to apply the law actively for social management.According to the provisions of laws,rules and regulations,a large amount of discretionary power also exists in the administrative penalties in the field of transportation in China.Efforts to regulate the exercise of discretionary power of transportation administrative penalties and ensure the fairness and reasonableness of the results of transportation administrative penalties are important elements to promote the administration according to law and build a government ruled by law in China’s transportation administrative system.However,administrative discretion has two sides.It can not only adapt to the complex and changeable law enforcement practice,but also may have the problem of power abuse.In order to prevent the abuse of discretionary power,scholars put forward various ways to control it from different perspectives.This paper draws on the research on the control of discretionary power in foreign countries and the views of domestic scholars to conduct a systematic study on the legal control of discretionary power of administrative penalties in the field of transportation.This paper is mainly divided into seven parts.The first part mainly introduces the background of writing.At present,China implements reform on comprehensive administrative enforcement of law in the field of transportation at provincial level,and the State Council has issued a guidance of law enforcement in the field of transportation,which integrates the laws and regulations in the field of transportation.Meanwhile,the newly revised Law of the People’s Republic of China on Administrative Penalties in2021 formally grants the right to formulate discretionary benchmarks in each place by legal provisions.The second part introduces the issue of discretionary control through the Chang Yongji case,which introduces the use of discretionary power by transportation administrators in the process of law enforcement.The third part defines the concept of discretionary transportation administrative penalties and analyzes the circumstances of discretionary transportation enforcement penalties.The fourth part reviews the legal ways to control the discretionary power of transportation penalties,and sorts out three legal control ways according to internal and external classification,namely,self-control by law enforcement subjects,administrative review and administrative litigation.The fifth part discusses the problems of the three legal control methods,namely,the technical problems in the formulation of the discretionary benchmark,the hearing of the reasonableness of the discretion of the transportation administrative penalty review cases,the review process,the supervision of the application of the escape clause and the moderate intervention of the judiciary in the use of the discretionary power of the administrative organs.The sixth part puts forward suggestions for improvement,including the improvement of self-control of the discretionary benchmark,the improvement of the review mechanism of administrative review,the regulation of the setting of the escape clause and the appropriateness of the review conducted by the judiciary,etc.The seventh part forms the author’s own conclusion,intended to provide a reference for the legal way of controlling the discretionary power in the field of transportation through a combination of internal and external control means.Above all,legal control on the discretionary power of administrative penalty of transportation can strengthen the supervision and control of the discretionary power of transportation administrative law enforcement,reduce the negative impact of irregularities in the law enforcement process,and also promote the reasonable use of discretionary power of transportation administration in administrative penalty.At the same time,it is also conducive to the protection of citizens’ rights and interests,and encourages citizens to have the courage to protect their rights.All these are consistent with the basic concept of ruling by law in China,and can steadily improve the credibility and authority of the transportation administration department.