How to correctly grasp the discretionary power in the process of administrative law enforcement

No. It is the exercise of discretion within the limits prescribed by law.

Legal analysisDue to the complexity of the social situations involved in administrative activities, and the detailed provisions of administrative law norms cannot be exhaustive, administrative organs must flexibly exercise their discretionary powers within the scope of legal constraints according to specific circumstances in order to effectively exercise their administrative functions. Discretionary administrative acts are symmetrical in binding administrative acts. It refers to an administrative act in which the legal norms only make a principled provision on the purpose and scope of the act, and leave the specific content, conditions, standards, range, and methods of the act training chain to the administrative organs to choose and decide on their own.

The reason why the judicial organs are given the right to conduct judicial review of administrative discretionary acts at the stage of administrative litigation is due to the following three reasons: First, judicial review of administrative discretionary acts is an inevitable requirement for mutual restraint between rights. The purpose of the establishment of administrative litigation is to supervise and restrain the administrative power, so as to prevent the infringement of the administrative power on the human rights of the administrative counterpart.

The review system in administrative litigation is undoubtedly an effective system design to ensure such supervision and restraint. Second, judicial review of administrative discretion is the inevitable result of the deepening of the concept of the rule of law. The first principle of the concept of the rule of law is to administer according to law.

This principle requires that the exercise of administrative power by administrative organs must be clearLegal basis。In addition, the process of exercising administrative power needs to be supervised and constrained by law. As an organ that exercises judicial power independently, the court should use the law to supervise and restrain the executive power.

Third, judicial review of administrative discretion is an inevitable manifestation of justice as the last remedy for rights. The final judicial decision is the need to protect the people's rights and the last barrier to protect the people from illegal administrative infringements. The final judicial relief means that the administrative discretion made by the administrative organ does not have the final effect of course, and the parties can file a lawsuit with the court on the grounds that the administrative organ has infringed on their legitimate rights and interests, and the realization of the purpose of the litigation requires the court to review the administrative discretion.

Legal basisArticle 5 of the Law of the People's Republic of China on the Punishment of the Public Security Administration of the People's Republic of China: Public security administrative punishments must be based on facts and be commensurate with the nature, circumstances, and degree of harm to society of the violation of public security administration. The implementation of public security administrative punishments shall be open and fair, respect and protect human rights, and protect citizens' personal dignity. The handling of public security cases shall adhere to the principle of combining education and punishment.

Wrong. It is the exercise of discretion within the limits of the law.

The harms of administrative discretion are as follows:

1. "Different punishments for the same case", "legal and unreasonable".

2. "Relationship cases", "emotional cases", and "attitude cases" have occurred repeatedly.

3. "Bargaining has lost the seriousness of law enforcement".

4. Seeking personal gain has seriously damaged the law enforcement environment.

5. Taking the initiative to "power rent-seeking" directly leads to crimes of violating discipline and law.

Administrative discretion refers to the power of an administrative subject to make a fair and reasonable administrative decision based on the duties and powers conferred by laws and regulations, based on the purpose and spirit of laws, regulations and administration, and in response to specific administrative-legal relationships.

Refining the "discretionary power" of administrative punishment to make it more reasonable, standardized and operable on the basis of legality is not only an urgent need for administrative law enforcement practice, but also a practical problem that administrative counterparts have been looking forward to solving for a long time.

Legal analysis: discretion refers to the tax authorities or imitation of other administrative organs and their staff in the case of the determination of legal facts, within the scope of legal authorization, in accordance with the legislative purpose and the principle of fairness and reasonableness, the power of the tax authorities or imitation of other administrative organs and their staff to judge the conditions of behavior, choose the mode of behavior and make administrative decisions freely, the essence of which is a process of administrative organs according to certain institutional standards and value orientations to make behavioral choices.

Legal basis: "Administrative Punishment Law of the People's Republic of China" Article 34: Administrative organs may formulate discretionary standards for administrative punishments in accordance with law, and standardize the exercise of discretionary powers for administrative punishments. The standards for the discretion of administrative punishments shall be released to the public.

Some people questioned the issue of indiscriminate fines to law enforcement officers, and law enforcement officers said: "The purpose of fines is not to penetrate but to erect, and strict law enforcement is to safeguard the legitimate rights and interests of the people." ”

Discretionary Administrative Law EnforcementIn laws and regulations, law enforcers may have a certain margin of choice in terms of scope, method, amount, and other aspects of law enforcement acts. Restraint and discretion are relative, for example, the conditions for the collection of individual income tax and the amount of tax generally have no room for flexibility, but there is a certain range of penalties for public security administration in Shanshan, which can be discretionary by the administrative organs.

Restraint of administrative law enforcement and discretionary administrative law enforcement:

Administrative law enforcement acts are divided into restraint administrative law enforcement and discretionary administrative law enforcement due to the different degrees of legal constraints. Restraint of administrative law enforcement means that laws and regulations have clear and specific provisions on matters that need to be enforced, and law enforcers must strictly follow the rules and regulations of laws and regulations, and there is no law enforcement behavior that is freely disposed of.

pro meets the purpose of the law. 1. The exercise of discretionary judgment should be fair, good-faith and reasonable. Impartiality means that when exercising discretion, we should act out of public intentions and achieve "the same situation is handled the same, and different situations are handled differently"; Good faith means that when exercising discretion, it should be done with good intentions and not with the intention of revenge; Reasonableness means that when exercising discretion, it should conform to people's normal thinking, and it is an act made out of the ordinary considerations of a normal person.

In order to conform to objective reality, if the party concerned is ordered to remove the trademark mark on the infringing goods, it should depend on the quantity, and it cannot be required to be completed within a few minutes. 2. The exercise of discretion should be justified for the purpose. A legitimate purpose is for an improper purpose.

Improper purpose refers to the purpose of self-interest or other abnormal considerations. If a person violates the law in a minor way, but is punished with the highest penalty, it is obviously an abuse of discretion. 3. The exercise of discretion should be in accordance with the purpose of the legislation.

The formulation of any administrative legal document, especially the provisions on legal responsibility, has a basic purpose, that is, to make the behavior of the administrative counterpart conform to the basic requirements set by legal norms, so as to realize the administration and governance of the country according to law, so as to create a harmonious legal society. If the exercise of discretionary power deviates from the purpose of the law, it will inevitably lead to administrative irrationality, and discretionary power will become a tool for personal selfish interests and revenge. This is the case if a fine is imposed for the purpose of imposing a fine, and the law is enforced for the purpose of completing the task of the fine.