Discretion refers to the principles and scope of state administrative organs stipulated by laws and regulations.

The right to choose disposal. These discretionary powers are said in the legal sense, but they are not.

This is said in a political sense. It is the activity of administrative organs and their staff in administrative law enforcement.

The authority given by the objective laws and regulations.

According to the provisions of the current administrative regulations, discretion can be summarized as the following.

Species:

1. Discretion within the scope of administrative punishment: that is, the administrative organ is in charge of administrative management.

When the counterpart makes an administrative penalty, he can choose freely within the legal penalty range. It is contained in

Free to choose the same punishment category and different punishment categories. For example,

Article 24 of the Regulations on Administrative Penalties for Public Security stipulates that those who violate the provisions of this article shall be fined up to fifteen days.

Detention, fines below 200 yuan or warnings ",that is to say, whether it is detention, fines,

Warning: Choose one of these three punishments, or choose the days or amount of detention or fine.

2. Discretion of choosing behavior: that is, the administrative organ is choosing a specific administrative route.

In the way of behavior, there is discretion, including action and omission. For example, the ocean

Paragraph 3 of Article 2 1 of the Customs Law stipulates: "If the goods listed in the preceding two paragraphs are not suitable for long-term storage, the customs shall

Can be handled in advance according to the actual situation. "that is to say, the customs in the way of handling (such as change

Price, freeze, etc. ), there is room for choice, and the semantics of "can" include allowing customs to act as.

Still inaction.

3. Discretion about the time limit for making specific administrative acts: There are a considerable number of administrative laws.

Laws and regulations do not stipulate the time limit for making a specific administrative act, indicating when the administrative organ.

There is room for free choice in making specific administrative acts.

4. Discretion to determine the nature of facts: that is, administrative organs are relative to administrative management.

Have discretion in determining the nature of a person's behavior or the nature of the matters under management. For example,

Item (3) of Article 2 1 of the Regulations on Traffic Safety Management in Fishing Port Waters stipulates: "In a fishing port,

Engaging in fishing and aquaculture in navigation channels, harbors, anchorages and berthing areas that hinder maritime traffic safety.

Production activities can be given a warning or a fine. Production activities here are very important for maritime traffic safety.

Whether it is "obstruction" or not, there is no objective measure, and the administrative organ's determination of the nature of "obstruction"

Good judgment.

5. Discretion to determine the seriousness of the circumstances: There are many administrative regulations in China.

It has vague meanings such as "slight", "serious" and "serious"

Words, and there is no statutory conditions for determining the seriousness of the circumstances, so that the administrative organs are lighter on the circumstances.

Re-appraisal has discretion.

6. Discretion to decide whether to implement: that is, administrative decisions on specific implementation,

Most laws and regulations stipulate that it is up to the administrative organ to decide whether to implement it. For example, the administrative procedure law

Article 66 stipulates: "Citizens, legal persons or other organizations shall, within the statutory time limit,

If neither prosecution nor performance is made within the time limit, the administrative organ may apply to the people's court for compulsory execution, or

Those who enforce the law. "Here" can "shows that the administrative organs can be discretionary.

Second, the incorrect expression of the right of free quantity.

As can be seen from the above classification, the scope of administrative discretion is very wide.

Pan's words almost penetrated into the whole process of administrative law enforcement. But the so-called "freedom" is relative,

There is no absolute freedom. As a British judge said in16th century: "Since

Measure is to do something according to the principles of reason and justice, not according to one's own will.

See do sth. Act according to the law, not according to personal likes and dislikes, and be free.

Discretion should not be arbitrary, vague and unpredictable, but should be legal.

The power to have certain rules. "(note 1) discretion" is a kind of discrimination between authenticity and falsehood.

The art and judgment of right and wrong, ... regardless of their personal wishes and feelings.

Move it. "(Note 2)

According to the relevant provisions of the Administrative Procedure Law, the table does not exercise discretion correctly.

The current forms mainly include:

1, abuse of power. This is the most typical manifestation of improper exercise of discretion, which

Legal consequences-the specific administrative act made is invalid. Abuse of power is the purpose.

The violation of the law is manifested in the fact that the exercise of discretion does not conform to the purpose given to this power by law.

Yes It is mainly manifested in the jobbery of administrative law enforcement personnel, personal grievances, abuse of power for personal gain, and

Realize all kinds of dishonest motives. There are two aspects in the people's court's review of abuse of power: first,

Is to determine the purpose of applicable laws and regulations (including the purpose of applicable provisions); then

It is to confirm the purpose of the specific administrative route, and then compare the two to determine whether to abuse power.

That's right. Because the abuse of power is an illegal purpose, the people's court is determining the legal purpose and specific

As far as the purpose of administrative behavior is concerned, it is very difficult, especially for exercising authority.

Therefore, the author believes that in the whole process of administrative law enforcement, various plots related to this case,

Factors and social effects of administrative law enforcement. Infer whether the purpose of a specific administrative act is violated.

Law, we should fully respect the unanimous opinion of the judges of the collegial panel.

2. The administrative punishment is obviously fair. Where laws and regulations stipulate legal liability, it shall be

An important principle of legislation is the principle of rationality and fairness. Reason and justice here are no longer

It is reasonable and fair in general, but it is fixed in legal form.

That is, it injects the will of the state and becomes legitimate rationality and justice. Administrative punishment of obviously unfair

Yes, it is against the will of the state, that is, it is not in line with the original intention of legislation, and it is essentially an abuse of freedom.

Another sign of prudence. The people's court may, according to the public

The positive principle should be changed.

3. Delaying the performance of statutory duties. Because there are many laws and regulations that do not stipulate administrative organs.

The time limit for performing statutory duties, so when performing statutory duties, the administrative organ is free.

Caution. An important principle of administrative management is the principle of efficiency. If this principle is violated,

Or for some dishonest motives, it is also incorrect to delay the performance of statutory duties.

The people's court has the discretion to judge the administrative organ to perform its statutory duties within a time limit according to law.

Three. Standards for measuring administrative law enforcement behavior

At present, it is generally believed that the behavior of administrative organs exercising discretion,

There is no question of whether it is illegal, only whether it is appropriate. This is essentially about balance.

Standardization of administrative law enforcement behavior.

As mentioned above, discretion is a kind of power given to administrative organs by laws and regulations.

Therefore, the act of exercising discretion must be administrative law enforcement. China's legal system is

Based on the written law, Article 5 of the Constitution stipulates the principle of rule of law, which emphasizes handling affairs according to law.

Therefore, the standard to measure an administrative law enforcement behavior can only be legality or not.

It is illegal, which is in line with the logical dichotomy. If you evaluate an administrative law enforcement act,

Whether it is legal or not, but whether it is appropriate, will inevitably increase the subjectivity and arbitrariness of law enforcement activities.

Arbitrary and arbitrary, and even lead to illegal defense for appropriate purposes, therefore,

Lost the fair measure of law enforcement, making the authority of administrative regulations shake and heavier.

It is important that the people lose confidence in administration according to law. It can be seen that the diversity of such measures.

Is not desirable. Only when there is no legal basis, administrative actions (non-line)

Political law enforcement behavior has nothing to do with discretion), there is a question of whether it is appropriate.

The author believes that legal administrative law enforcement must meet the following two conditions at the same time:

(1) within the scope stipulated by laws and regulations; (2) It conforms to the original intention of legislation. You know, the kind

It is "legal" to implement administrative law enforcement within the scope prescribed by laws and regulations. be

A misinterpretation of "legitimacy". If it does not conform to the legislative intent, it does not conform to the legal provisions.

The purpose of this power. Even within the scope of laws and regulations, it is illegal, resulting in

The legal consequence is that the specific administrative act should be revoked or changed. The Administrative Procedure Law will be abused.

This is illustrated by the fact that authority and delay in performing statutory duties are regarded as illegal acts. But,

Administrative punishment that is obviously unfair (in essence, this is a special form of abuse of power)

It is stipulated as an exception to legality, and it also reflects the contradiction in legislation. author

The discussion on this issue is intended to limit discretion, not deny it.

The value of quantitative rights.

Fourthly, the objective basis, advantages and disadvantages of the existence of discretion.

No matter in any country, the discretion of administrative law enforcement exists, the difference is that

It's just different in scope and supervision. Based on the national conditions of China, this paper studies the administrative law enforcement.

The objective basis of the existence of discretion and its advantages and disadvantages are very necessary, which is very important to improve administrative enforcement.

The law stipulates that the correct exercise of discretion is of great significance.

1. Ensuring administrative efficiency is the decisive factor for the existence of discretion. law-based administration of government

The scope is very extensive, which requires that the administrative power owned by the administrative organs must adapt to the complexity.

Miscellaneous, various specific situations of development and change. In order to enable the administrative organs to assess the situation

It is important not to be helpless in the face of complex and changeable problems and miss the opportunity, law and law.

Laws and regulations must give administrative organs the right to exercise discretion within the prescribed principles and scope, so as to be spiritual.

Resolutely solve problems and improve administrative efficiency. In modern society, it is necessary to strengthen administrative management.

Management and efficiency, so the discretion of administrative organs will be more and more big, which is harmful to administrative management.

It is beneficial for the organs to actively carry out their work and improve administrative efficiency, but it is also prone to drawbacks.

End-abuse of power. In order to prevent the administrative organs and their staff from abusing public interests for personal gain,

Arbitrary, leading to "rule by man", to a certain extent, to limit discretion.

2. The contradiction between the universality of legislation and the individuality of events is the existence of discretion.

The decisive factor. Due to China's vast territory and large population, all regions

Political, economic and cultural development is very uneven, and social customs and lifestyles are also very different.

Various social relations adjusted by laws and regulations are different in different regions.

It is impossible to sum up all the situations. Therefore, from the perspective of legislative technology,

The legislature can't make detailed provisions, and often it can only stipulate some principles and some rules.

Flexible regulations, optional measures and the scope of up-and-down activities make the administrative organs

Leaving flexible space is conducive to the effective promotion of administrative organs according to time, place and people.

Administrative management. However, the "flexibility" of legal provisions and the "operability" of law enforcement are incompatible.

It is easy to produce contradictions. If it is "flexible" and inconvenient to "operate", then the benefits of law enforcement

It will be greatly discounted. (Note 3) This is also because some administrative law enforcement officers use loopholes in the law to abuse power for personal gain.

An important source of personal income.

It is worth mentioning that some administrative law scholars in bourgeois countries think that the past is negative.

"Administration according to law" should have a new interpretation today, that is, the so-called "administration according to law" is not

It means that any activity of the administrative organ needs legal provisions, but it also means that it does not violate the law.

Within the scope, administrative organs are allowed to have discretion, that is, the right to adjust measures to local conditions according to time and circumstances.

Force. That is to say, the activities of administrative organs are not limited to the scope of existing laws, as long as they do not

Violating the law is also regarded as conforming to the rule of law, not only inconsistent with the rule of law, but also correct.

Its development and supplement. Because, the initial rule of law, mainly from the negative aspects to consider the problem, namely

Mainly to prevent the administrative organs from abusing their power. In fact, the rule of law also has a positive aspect, that is, protection.

Administrative organs effectively exercise their functions and powers and maintain law and order. This theory in the bourgeoisie

The legal profession is growing day by day. (Note 4)

Five, the people's court of judicial review of discretion.

Historian Lord acton said: "Power is often corrupt, and absolute power is absolute.

Corruption ",(note 5) the same is true of discretion. The granting of discretion, never

Is to allow administrative organs and their staff to use it as an arbitrary umbrella, on the contrary, it should be

Implement effective control, as james mill said in the "government document":

"All the reasons for advocating granting political power are to advocate the establishment of safeguards to prevent abuse of political power.

By. "(Note 6) Laws and regulations authorize the people's courts to exercise certain specific administrative acts.

The right of judicial review is based on such considerations.

Article 5 of the Administrative Procedure Law stipulates that the people's courts shall examine the legality of specific administrative acts.

Principle, Wang Hanbin in the "on People's Republic of China (PRC) * * * administrative procedure law (Draft)"

The explanation pointed out: "The trial of administrative cases by the people's courts is a question of whether the specific administrative act is appropriate.

Review methods. Specific administrative acts made by administrative organs within the scope prescribed by laws and regulations,

Whether the behavior is appropriate should, in principle, be handled by administrative reconsideration ",that is, by the people's court.

Exercising the right of judicial review on the specific administrative act of the sued administrative organ according to law through administrative litigation, and reviewing

The main content of the investigation is the legality of specific administrative acts rather than the inappropriateness.

However, this does not mean that the people's court cannot supervise the discretion.

As mentioned above, the discretion possessed by administrative organs runs through specific administrative acts.

At each stage, due to improper exercise of discretion, it is mainly manifested as abuse of power.

Right, delay in performing statutory duties, unfair administrative punishment, etc. , its legal consequences are

The people's court has the right to revoke, restrict the performance or change the specific administrative act according to law.

However, the principle of examining the legality of specific administrative acts shows that the people's courts are limited.

Right of judicial review. At present, China is vigorously strengthening the construction of socialist democracy and legal system.

The people's courts should give full play to their judicial functions and make some achievements in this regard.

As. On the one hand, we should handle cases in strict accordance with the law, not just protect citizens, legal persons or other organizations.

The legitimate rights and interests, but also to safeguard and supervise the administrative organs to exercise their administrative functions and powers according to law, to overcome the fear of difficulties.

I want to make unprincipled accommodation with the administrative organs. On the other hand, it is necessary to improve the people's court's power of judicial advice,

The people's court cannot approve those who really abuse power for personal gain, or who violate the law and discipline.

If the administrative litigation is corrected, it shall be put forward to the relevant departments in the form of judicial suggestions in order to maintain it.

The interests of the country and the people.

Countermeasures of controlling discretion by intransitive verbs

In order to prevent the administrative organs and their staff from abusing their powers, the right of discretion is changed to one.

For this arbitrary power, I think the following countermeasures should be taken:

1, improve the supervision system of administrative law enforcement. The main body of supervision is not only the party and state organs (including

Including legislative organs, administrative organs, procuratorial organs and judicial organs, as well as enterprises and institutions,

Social organizations, grassroots mass organizations and citizens. The existing statutory supervision methods should also be based on

The needs of the situation, constantly supplement and improve; If there is no statutory supervision method, legislation should be passed.

Or make laws and regulations to ensure effective supervision. At the same time, there must be talents who abuse their powers.

Take severe punishment measures, but also reward and protect those who have made meritorious deeds in supervision.

2. In legislation, we should deal with the "flexibility" of legal provisions and the "operability" of law enforcement.

The relationship between "sex" should be as clear and specific as possible, and "elasticity" should be reduced, especially for the people involved.

This is especially true for the provisions on the legitimate rights and interests of citizens. At the same time, we must conscientiously implement the State Council's instructions.

21Article 17 of the Provisional Regulations on Procedures for Formulating Administrative Regulations approved on April 26th, 987 stipulates:

"The detailed rules for the implementation of administrative regulations shall be formulated by the competent department.

The regulations are issued at the same time or later, and the implementation date is the same as the administrative regulations.

During the same period. "To ensure the efficiency of the implementation of administrative regulations. We should pay close attention to formulation and management.

Relevant provisions of procedural laws such as the Organic Law of Administrative Organs and the Administrative Procedure Law,

Administrative reconsideration law and so on.

3. It should be emphasized that the administrative organ explained the reasons for the specific administrative act. In administrative proceedings

For the proof of abuse of power, the plaintiff bears the burden of proof, but this kind of proof is difficult.

Difficult, learn from some foreign practices, should emphasize the administrative organs to make specific administrative acts.

Reason, in order to determine whether its administrative purpose is in line with this power granted by laws and regulations.

Yes If there is no reason, the reasons are not sufficient or do not conform to the original intention of legislation, it shall be recognized.

Because of abuse of power.

4, strengthen the construction of administrative law enforcement team, improve the level of law enforcement. Now administrative law enforcement personnel

Low quality is a common problem, which is incompatible with the ongoing modernization in China.

It should be that some administrative law enforcement personnel have the idea of "taking the lead and being the only one". To this end, one

On the one hand, we should strengthen the training of administrative law enforcement personnel through various channels, on the other hand, we should deal with those who have not adapted.

Those who should be engaged in administrative law enforcement activities should be resolutely transferred out to make the administrative law enforcement team clean and rich.

Efficiency.