Discuss the relationship between the rule of law and discretion 10

What are the main functions of the extensive use of administrative discretion in the following ways Hello, dear. In a complex and ever-changing social environment, in order to enable the administrative subject to exercise administrative power in a timely and effective manner, the legislator gives the administrative subject a certain discretionary power within the scope of the law when carrying out administrative legislation. As the legal power of administrative organs endowed by law, administrative discretion indicates that administrative organs can actively exercise administrative power within a certain limit, and the exercise of this power can improve administrative efficiency in practice, but the administrative discretion possessed by administrative subjects is getting bigger and bigger, and the phenomenon of administrative discretion being abused is gradually intensifying.

In order to safeguard the legitimate rights and interests of the administrative counterpart as much as possible, and to avoid the abuse of administrative discretion, it is necessary to increase efforts to reasonably regulate the exercise of administrative discretion.

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.

Summary. "Expanded discretion" usually refers to the delegation of authority to a person or individuals in a certain area or an institution, and the relaxation of management constraints in order to solve problems more quickly and efficiently. This practice can improve work efficiency to a certain extent, but at the same time, there are certain risks and negative effects.

If there is too much discretion or there are no clear management constraints, it can lead to problems such as abuse of power and unfair decision-making. Therefore, while expanding discretionary powers, it is also necessary to formulate corresponding management regulations and supervision mechanisms to ensure the correct exercise and fair implementation of powers.

Not quite right. Excuse me, but please go into more detail?

"Expanded discretion" usually refers to the delegation of authority to a person or individuals in a certain area or an institution, and the relaxation of management constraints in order to solve problems more quickly and efficiently. This practice can improve work efficiency to a certain extent, but at the same time, there are certain risks and negative effects. If there is too much discretion or there are no clear management constraints, it can lead to problems such as abuse of power and unfair decision-making.

Therefore, when expanding discretionary powers, it is also necessary to formulate corresponding management regulations and supervision mechanisms to ensure the correct exercise of power and fair execution.

Legal analysis: discretionary power refers to the power of the tax authorities or other administrative organs and their staff to judge the conditions of behavior, choose the mode of behavior and make administrative decisions freely within the scope of legal authorization, within the scope of legal authorization, in accordance with the legislative purpose and the principles of fairness and reasonableness. Tax discretion generally exhibits the following characteristics:

1) The selectivity of the way to exercise the power, that is, the tax laws and regulations do not stipulate the exercise of the power, or although there are provisions, it is relatively general and principled, and the tax authorities can decide whether to exercise this power or how to exercise this power according to the actual situation, including acts and how to act and not act. (2) The uncertainty of the time limit for the exercise of power, that is, the power of the tax authorities to make administrative decisions at a specific time within the time limit specified in the tax laws and administrative regulations. (3) The types and magnitude of the application of power are relatively flexible, that is, the tax law stipulates a certain range of differences in the exercise of tax enforcement powers, and the tax authorities can make appropriate handling of specific matters within the statutory range.

4) The difficulty in determining the criteria for the exercise of power, that is, the tax law does not make clear, specific and detailed provisions on the criteria for the tax authorities to use their powers to deal with specific events, and some semantically ambiguous words are used, lacking the statutory conditions for determining the standards, and the tax authorities can judge the criteria for the use of powers according to the specific circumstances.

Legal basis: Article 60 of the Administrative Litigation Law of the People's Republic of China: People's courts hearing administrative cases do not apply mediation. However, cases of administrative compensation, compensation, and the exercise of discretionary powers provided by laws and regulations by administrative organs may include mediation.

Mediation shall follow the principles of voluntariness and legality, and must not harm the national interest, the societal public interest, or the lawful rights and interests of others.

Answer]: Administrative acts are divided into discretionary administrative acts and binding administrative acts based on the flexibility of the administrative subject's application of administrative law norms. Due to the complexity of the social affairs managed by the administrative body, and the fact that the law cannot exhaust the modes, means, and extent of the administrative subject's behavior, it is necessary to give the administrative subject discretion within the scope of legal authorization.

However, uncontrolled administrative discretion inevitably leads to abuse, which will seriously undermine the rights and freedoms of citizens and endanger the country's democracy and the rule of law. The legal control of administrative discretion is mainly concentrated in two aspects: administrative procedure and judicial review.

1) Program control. The administrative procedure law mainly controls discretion and controls: the hearing system.

Where administrative organs exercise discretionary powers, where the major rights and interests of the counterpart are involved, they shall inform the parties that they have the right to request a hearing, and where the administrative organ holds a hearing ex officio or upon application, it shall hear the opinions of the counterpart, consider the relevant evidence and materials submitted by the counterpart, and then make a decision and carry out the corresponding acts. notification system; segregation of functions; No unilateral contact system.

2) Judicial review is the most accessible and effective control of administrative discretion: the feasibility of judicial review. The improper exercise of administrative discretion raises not only questions of reasonableness, but in many cases questions of legality, and it is the mission and duty of the courts to intervene in these matters.

The extent of judicial review. Courts generally only examine the legality of administrative acts, investigate their reasonableness, and revoke illegal acts without the right to change them. Conduct is based on review.

The basis for the court's review of discretionary acts refers to the legal basis for reviewing the acts, that is, the source of discretionary power. Purpose of conduct review. Laws and regulations grant certain discretionary powers to administrative organs in order to enable them to better perform their corresponding management functions and complete their corresponding management tasks.

An abuse of discretion by an administrative agency constitutes an abuse of discretion if it is not intended to achieve the purpose authorized by laws and regulations, and its conduct is mixed with the illegal motives of individuals. Behavioral content review. The content of the court's review of administrative discretion includes whether it violates the express conditions prescribed by law, whether it violates the conditions implied by the law and regulations, whether the administrative agency has indiscriminately interpreted the flexible language of the law, and whether it conforms to the basic principles of social justice.

Review of administrative procedures. Whether the administrative organ has complied with the appropriate procedures in the exercise of its discretion.

1. Grant the executive a certain authority to choose between action and inaction.

2. Laws and regulations enumerate certain types of disposition methods to be adopted under certain circumstances, and authorize the administrative organ to choose one or more of them.

3. Laws and regulations set out a range and scope for administrative punishments, mainly fines and detention punishments, within which administrative organs can freely grasp and impose punishments. 4. Laws and regulations do not make specific provisions on the circumstances or other circumstances of administrative violations, but use vague and uncertain legal concepts such as "the circumstances are minor", "the circumstances are more serious", and "when necessary", which are to be understood, mastered and applied by the law enforcement agencies.

Legal basis] Article 37 of the Administrative Punishment Law, when collecting evidence, administrative organs may adopt the method of sampling evidence; In circumstances where evidence might be destroyed or difficult to obtain later, upon approval of the responsible person for the administrative organ, it may be registered and stored in advance, and a decision on disposition shall be promptly made within seven days, and during this period, the parties or relevant persons must not destroy or transfer the evidence.