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Problems and Countermeasures of the abuse of administrative discretion

Author: YuanJinHua From: www.yourpaper.net Posted: 2010-06-24 00:30:50 Read:
Abstract: the administrative discretion "freedom" and "closed" characteristics determine that it is more vulnerable to the impact of power, money and other non objective factors and lead to its abuse, which will seriously affect the legal justice and fairness.Based on the understanding of the connotation of administrative discretion and abuse the controlling measures of administrative discretion.
Keywords: administrative discretion; abuse; measures of
One, the definition of administrative discretion and
According to the specific administrative act is restricted by law degree, can be divided into strict administrative act and Discretionary Administrative acts.The law gives the administrative organs at the discretion of a special right, called discretion.So simple to say, the administrative discretion is the laws and regulations to the administrative organ in the administrative management activities on the basis of the legislative purpose and fair and reasonable principle, according to the specific situation to judge behavior and decide to implement its behavior or not as well as how the power, executive power is a commonly used.It has the following two characteristics:
1, the administrative discretion to the general legal administrative power, is a "free" right, flexibility.Administrative organs have their own judgment, choose and decide whether or not to make certain behavior, where and when to act, how to conduct extensive freedom.
2, the administrative discretion freedom is not absolute.It has the general characteristics of administrative power of the state will, legal nature, its standards and objectives, by legal restrictions.Discretion is the discretion in certain range of laws and regulations within a prescribed range, not without discretion is marginal, completely different and no criterion limit.
Administrative discretion is the inevitable demand of modern administration.First of all, the existence of administrative discretion is necessary to improve administrative efficiency.All kinds of social phenomena to the numerous and complicated, development and change, in order to make the administrative organ to size up the situation, to various specific, concrete social able to decisively deal with and solve, in the way of application, method and so on have a free choice.Therefore, given the laws and regulations of our country administrative organ in the legal scope to exercise discretion, to enhance the initiative of the administration, improve administrative efficiency.Secondly, the existence of administrative discretion is the need of all kinds of social relations of legal adjustment.Facing the complex social relations, laws and regulations can not generalize to perfect, very detailed.Therefore, from the legislative technology, the law can only limited to some principles, flexible provisions, make the choice of measures and activities by the administrative organ, flexibly with people to make effective administration.At the same time, the administrative discretion is a double-edged sword, it is very easy to be abused in the lack of procedure restriction and necessary to the effective supervision of the case, to the administrative relative person's legitimate rights and interests is infringed.
Two, the abuse of administrative discretion performance of
1, discretion lopsided
The so-called lopsided is obviously unfair measures in the legal range.Many of China's laws and regulations are authorized administrative organs have the freedom to choose the way in the legal range, range.Administrative penalties shall be imposed on the relative fair, can make the specific circumstances of discretion and the formation of a certain proportion, do basic uniform standards, reasonable and fair.Otherwise, there will be specific measures of administrative organ and the relative person's lopsided, caused by abuse of discretion.
2, the laws and regulations as to expand or narrow interpretation of the
In some laws and regulations, legislation more elastic, means that the administrative organ for a certain selection and interpretation of freedom.Administrative organs in the selection and interpretation of these elastic rules, must be based on the legislative spirit and the objective laws and regulations, follow Convention and precedent, making it a certain standard and the principle of rule.Only in this way, can the society stable and normal, the administrative relative person of the administrative activities of the forecast will have a certain standard or reference coefficient.Otherwise, it will form the administrative organ for abuse of discretion.
After 3, discretionary behavior inconsistent
Administrative organs and their staff based on the provisions of the law and the legislative objective requirements, in order to make the social life of the formation of a more stable order, take measures in the specific administrative action, the same measures should be based on the facts and circumstances, the consequences of similar behavior, make the administrative relative person to be able to predict their actions and results.But because of some administrative organs and their staff in making choices and decisions from the unit, the local interests and taking into account the individual political, economic and social backgrounds, on the same thing or action to deal with the distinction, inconsistent.
4, refuse or delay to perform the duties of
China's current laws and regulations, to perform their statutory duties have deadline requirements has two kinds: one is administrative license behavior: two administrative protection act.For these two types of behavior, the time limits, the laws and regulations and some clear, some vague, but whatever the case, the administrative body for when to perform their statutory duties have discretion right.According to the principle of efficiency of administrative management, the administrative subject should be timely exercise of executive power, perform their statutory duties.But in practice, in violation of the principle of efficiency or for some less honest motivation, delays the performance of his statutory duty behavior has its in.This behavior is also on the abuse of discretion.Three, to solve the abuse of administrative discretion of the countermeasures and measures of
1, perfect the legislation, the establishment of an open, fair, unified administrative procedure, promote administrative action program.
Should first establish the procedure of public and fair principle, determine the standard procedure through legislation, the basis, conditions, process, information, decision intention, results to the open to the administrative organ to exercise the discretion, be open to private interests of large and close relationship with public interests or concentrated power field, the exercise of power is in the public eye; give the administrative behavior of both the corresponding fair procedural rights.To deal with the legal provisions of the "elastic" and law enforcement "operation", try to be clear and concrete, reduce the "elastic", especially to the legitimate rights and interests of citizens in terms of concerns, and even more so.
2, establish and perfect the administrative supervision mechanism.Supervision is not only the party, the state organs (including legislative organs, administrative organs, judicial organs, procuratorial organs), and enterprises and institutions, social organizations, grassroots organizations and citizens.The legal supervision of the existing should also be based on the needs of the situation, continue to supplement, perfect; no legal supervision mode, through legislation or regulations, the supervision to ensure very fruitful.At the same time, to breach of privilege people to take strict punitive measures, but also rewards and protection of active personnel supervision."Administrative supervision of three points", also is the internal supervision of administrative organ, more supervision afterwards.In the current administrative supervision system, administrative supervision are grammaticalized has very obvious, such as the administrative organ or administrative procedures, not as a set, the relative person through supervision departments of administrative organs complaints effect is not ideal; and each administrative organs have misjudged case investigation system, true implementation of misjudged case a few cases.Administrative organs of self supervision, always have their own supervision too, the lack of authority in the public.Therefore, strengthen the administrative supervision of the operation, strict implementation of responsibility, establish the authority of supervision, flood control of the administrative discretion, to prevent the expansion of executive power can be said is very important, is the key to the success or failure of the reform.
3, strengthen the construction of administrative law enforcement team, improve the level of law enforcement.Now the quality of personnel administrative law enforcement is not high is a common problem, this is with the modernization construction of our country is not adapt, some administrative law enforcement personnel "occupy a square, stand upon one's pantofles" thought.Therefore, on one hand we should step up through various channels to the training of administrative law enforcement personnel, on the other hand, those who no longer suitable for the activities of administrative law enforcement people resolutely out, making the administrative law enforcement team integrity and efficient.
4, fully into the judicial review.The legitimacy of the current judicial review of administrative action is limited to the administrative act, the administrative discretion in judicial review is not enough.The administrative discretion to judicial review, one can strengthen the judicial supervision, the two is to avoid their own supervision too.
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