How to correctly grasp the discretion in the process of administrative law enforcement

The administrative law enforcement personnel of the transportation management department are the subjects of exercising discretion. Improving the quality of law enforcement personnel is the key to controlling the abuse of discretion. All transportation management departments should strengthen education and training on discretionary power and carry out various forms of learning and seminar activities. Through methods such as self-examination, criticism and self-criticism, we can find out the problems that exist deep in the minds of law enforcement officers, correct their law enforcement concepts, improve their road literacy, and correct the long-established "discretionary power is given by law to law enforcement agencies and There is a misconception that law enforcement officers have a "space" where they can decide independently, and within this "space" administrative penalties can be imposed at will." This will lay a solid foundation for administrative law enforcement personnel to correctly exercise discretion and standardize administrative behavior

1. The expression of discretion in laws and regulations

1. Determination of the nature of facts Discretion

Article 75 of the "Tao Regulations" stipulates: In violation of the provisions of these Regulations, a motor vehicle driver training institution does not conduct training in strict accordance with the regulations or commits fraud when issuing training completion certificates... . The motor vehicle driver training institutions mentioned in this article do not conduct training in strict accordance with the regulations. What is strictly in accordance with the regulations and what is not strictly in accordance with the regulations? The regulations do not specify specific standards. The transportation and law enforcement department will not strictly follow the regulations. The determination of the nature of "prescription" is subject to great discretion.

2. Discretion in the seriousness of illegal acts

Similar words such as "serious circumstances" often appear in laws and regulations on political administration, such as "Tao Tiao" 70 Article 1: In violation of the provisions of these regulations, if a passenger transport operator or freight operator commits any of the following circumstances, the road transport management agency at or above the county level shall order it to make corrections and impose a fine of not less than 1,000 yuan but not more than 3,000 yuan; if the circumstances are serious, the original Licensing authority revokes road transport operating license... The laws and regulations do not specify the criteria for the severity of the circumstances in this article. The transportation and law enforcement departments have greater discretion in determining the severity of illegal acts.

3. Discretion in the magnitude of punishment for violations

This form can be found everywhere in the "Tao Tiao", and it is also the easiest and most intuitive way for our majority of transportation and law enforcement personnel to understand discretion. For example, Article 71 of the "Road Regulations" stipulates: If a passenger transport operator or freight operator violates the provisions of these Regulations and fails to maintain and inspect transport vehicles in accordance with regulations, the road transport management agency at or above the county level shall order him to make corrections and impose a fine of more than 1,000 yuan. A fine of less than 5,000 yuan is imposed. Our transportation and law enforcement officers can choose between 1,000 yuan and 5,000 yuan in the amount of fines, and they have a wide range of discretion.

2. The current status of discretion in transportation and law enforcement

1. Transportation management and law enforcement personnel are not aware enough of the correct exercise of discretion

At present In the process of government administration and law enforcement, influenced by traditional administrative law enforcement, law enforcement personnel focus on the basis for administrative penalties, law enforcement methods and law enforcement procedures, and simply pursue civilized law enforcement, standardized law enforcement, and strict law enforcement. Some law enforcement officials are unfamiliar with the special and new term "discretionary power" and do not understand its meaning. They lack the importance of "freedom to carry power" and thus ignore the fairness and reasonableness of discretionary power. These law enforcement personnel, including unit leaders, feel that legal basis and legal procedures are important factors in determining whether an administrative penalty case is legal, and discretion is the "space" that laws and regulations give law enforcement agencies and law enforcement personnel to make their own decisions. Within the scope of this "space" Administrative penalties can be imposed at will, as long as they meet the requirements stipulated by law. This will also leave the person facing the administrative penalty with "nothing to say" and will not lose the case if an administrative lawsuit is caused.

A friend of the author bought a large truck a year ago. When operating it in a city in Chongqing, it was seized by the local transportation management office and found that he did not apply for a "Road Transport Certificate." The institute imposed an administrative penalty of 30,000 yuan on him. Unable to accept the financial penalty of 30,000 yuan, he raised objections and approached the institute for arguments. The law enforcement officer in charge of the case gave him "ideological work" and said: "We will punish you in accordance with Article 64 of the Code of Conduct for your violation of regulations. I can also fine you 50,000 yuan or 100,000 yuan." Ten thousand yuan, I will fine you 30,000 yuan. It depends on your good attitude in accepting the punishment, so the penalty will be reduced. I am taking care of you." From this point of view, how flexible the discretion is is an issue that urgently requires thinking by the transportation management authorities at all levels.

2. In the current transportation and management laws and regulations, the amount of penalties for violation is too large, the flexibility is too large, and the discretion is difficult to grasp

For example, our current "Tao Regulations" Article 71 stipulates that for "acts of engaging in road transport business activities without obtaining a road transport business license", illegal gains may be confiscated and a fine of not less than 30,000 yuan but not more than 100,000 yuan may be imposed. The amount and flexibility of penalties are too large. The amount of the fine is often several times higher than the value of a car, and the fine can cause the operator to lose all his money. Regarding the penalty scales stipulated in the relevant laws and regulations on road transportation management, the author has reviewed relevant information, and there are no relevant regulations that clearly stipulate what fines should be imposed under what circumstances. At present, in the process of administrative law enforcement, the potential range of punishment depends on whether the person subject to administrative punishment is a local, whether he has a good attitude towards accepting the punishment, whether he has social connections and status, whether he can say good things, etc. The size of the penalty depends entirely on the law enforcement personnel. subjective consciousness.

Under the premise that the legal quality of my country's grassroots transportation management and law enforcement teams is not very high at present, in the face of such legal regulations, it is urgent to formulate a practical "discretionary implementation method".

3. The exercise of discretionary power breeds corruption in the management and law enforcement teams.

As far as the author understands, in the process of punishing illegal business operations in the current transportation market, when the illegal circumstances are basically the same, the punishment standards of various counties and cities are very different. For example, if Zigui's "black car" is seized by other counties, the amount of fine will be completely different from that of Zigui's "black car". Even within the same unit, for two identical illegal cases, the punishment results may be completely different due to the subjective arbitrariness of administrative law enforcement personnel.

Every one of our law enforcement officers has seen this fact more or less. When a vehicle is illegally operated and is seized by the transportation management department, after some "accommodation", it is finally told that "it will not happen next time." Let them go without imposing a fine; they can also provide "favors" within the scope of the law through warm hospitality and active "research on key problems", or disguised punishment or even no punishment; some transportation management offices have also experienced "bargaining" and "bargaining" of administrative penalties. "credit" and other phenomena; in addition, in the process of dealing with illegally operated "black cars", we asked ourselves how many "black cars" have been fined more than 10,000 yuan? Wasn't there any punishment? After various effective "unblocking" efforts by the "black car" operators, the law enforcement officers of the transportation management office can randomly find a clause with a smaller fine amount to impose penalties on the "black car". After removing the "research funds", the violation It will also be "cost-effective" for car owners to operate, and naturally they will not "hide" because the illegal facts are inconsistent with the basis for punishment. And so on and so forth. This kind of arbitrary exercise of administrative law enforcement discretion in law enforcement and case handling even changes the punishment for illegal facts, resulting in an imbalance in the severity of administrative penalties and a lack of leniency for the same illegal facts. It undoubtedly makes us doubt the credibility of administrative law enforcement. —How to ensure fairness when law enforcement is so arbitrary? Seriously affected the image of traffic law enforcement. The existence of this phenomenon also creates conditions for some law enforcement officials to abuse their power for personal gain, which breeds corruption in the management of law enforcement teams.

2. A brief discussion on the control methods of discretion in the process of administration and law enforcement

1. Improve the quality of law enforcement personnel and ensure the correct use of discretion

The administrative law enforcement personnel of the transportation management department are the subjects of exercising discretion. Improving the quality of law enforcement personnel is the key to controlling the abuse of discretion. All transportation management departments should strengthen education and training on discretion and carry out various forms of learning and seminar activities. Through methods such as self-examination, criticism and self-criticism, we can find out the problems that exist deep in the minds of law enforcement officers, correct their law enforcement concepts, improve their road literacy, and correct the long-established "discretionary power is given by law to law enforcement agencies and There is a misconception that law enforcement officers have a "space" where they can decide independently, and within this "space" administrative penalties can be imposed at will." This will lay a solid foundation for administrative law enforcement personnel to correctly exercise discretion and standardize administrative behavior.

2. Refine quantitative discretion to ensure uniform and fair law enforcement.

Competent departments at all levels should formulate practical "Measures for the Implementation of Discretionary Power" based on actual conditions, break down and refine the illegal circumstances, illegal amounts and administrative penalty standards of relevant laws and regulations, and conduct more vague regulations Detailed explanations and explanations provide implementation basis for grassroots law enforcement officers. Avoid various drawbacks caused by excessive administrative penalty discretion and enhance the unity and seriousness of law enforcement work.

For example: For unlicensed business activities, according to the provisions of the "Tao Regulations": if there are illegal gains, the illegal gains will be confiscated and a fine of not less than 2 times but not more than 10 times of the illegal gains will be imposed; if there are no illegal gains or If the illegal income is less than 10,000 yuan, a fine of not less than 20,000 yuan but not more than 100,000 yuan will be imposed. However, it was not possible to break down the circumstances and how much fines were imposed. When formulating the "Measures for the Implementation of Discretionary Power", it can be clearly stipulated that if the party is indeed the first violation and the amount of illegal income is relatively small, the fine shall be imposed. If the party concerned has no fixed occupation, or is an immigrant, laid-off person or other person without means of survival, and relies on illegal business activities as his source of livelihood, how much fine will be imposed? If a party is caught engaging in unlicensed business activities many times; if the party resists law enforcement or violently resists the law; or if the party retaliates against law enforcement officers or whistleblowers, and if it is found to be true, the amount of fine will be imposed. Determine the penalty standards in detail for different situations so that the corresponding illegal situations can be identified. For the terms "serious circumstances" and other terms in the "Tao Tiao" clauses, specify the specific standards for the severity of the circumstances. For terms such as "relevant provisions" in the articles of "Tao Tiao", please explain in detail those specific provisions, etc.

In addition, in the process of formulating the "Measures for the Implementation of Discretionary Powers", the principles of lighter, mitigated or heavier penalties must also be fully considered. For example: "Those who resist inspections during the investigation and handling of illegal transportation and management activities by law enforcement agencies, obstruct official duties, and violently resist the law" may be severely punished; "those who actively eliminate or reduce the consequences of illegal activities" may be given lighter or reduced penalties. After the measures are formulated, when the transportation management agency implements administrative penalties, if the specific amount of punishment has been determined for the illegal act, it must be punished according to that amount. If there is no provision, in principle, it must be based on the punishment range stipulated in laws and regulations, and the intermediate amount. Value standards are processed. If the penalty is lower or higher than the median value, the corresponding conditions should be met.

After refining the regulations in this way, firstly, law enforcement officers can have rules to follow; secondly, various corruption phenomena that occur due to excessive discretionary power can be avoided; thirdly, the fairness of laws and regulations can be maintained , fairness and rationality.

3. Strengthen system management and solve the problem of too "free" free load rights from the source

First, establish an avoidance system. In the process of administrative law enforcement, if the law enforcement personnel have an interest or other related relationship with the law enforcement target, the unit leader should require the law enforcement personnel to recuse themselves. If the unit leader needs to withdraw, the team will make a collective decision. This effectively avoids the occurrence of favor cases and relationship cases.

The second is to establish a law enforcement accountability system. It is necessary to clearly distinguish the abuse of discretion, whether it is subjective abuse or objective abuse; whether it is occasional abuse or consistent abuse, etc., to distinguish different responsibilities. Link responsibilities with personal remuneration and job promotion, and truly implement the law enforcement accountability system.

The third is to establish and improve systems such as the separation of fines and payments, and the separation of law enforcement and punishment. The combination of law enforcement and punishment creates greater administrative penalty discretion, and a certain degree of control can be obtained after the separation of powers. The separation of fines and payments has been proposed for many years, but many transportation management departments have not implemented it seriously. The competent departments should strengthen supervision and inspection of the implementation of this system to ensure that this system is implemented in place, which can also effectively avoid the occurrence of corruption.

The fourth is to conduct regular follow-up inspections and continuously improve discretionary standards. The discretionary standard is the principle standard for law enforcement agencies to reasonably refine and determine administrative penalties within the scope of their discretion based on local conditions when laws and regulations are not very clear. The superior authorities should intensify the administrative law enforcement inspection of each law enforcement unit, focusing on inspecting whether the exercise of discretion by each law enforcement unit is fair, open, just and reasonable. Is there a phenomenon of randomly filling in illegal facts on fine tickets? Is there a phenomenon that the amount of vehicle penalty for the same illegal fact is too different?

The fifth is to disclose the discretionary standards and accept social supervision. After formulating discretionary standards for administrative penalties, law enforcement agencies should make them widely available to the public so that the public can understand them. In this way, the counterparty can compare his own illegal behavior and obtain the scale of punishment that the law enforcement agency will impose on him. This will not only make the law enforcement officers aware of it, but also allow the public to see it clearly, and can also gain recognition from society and the parties concerned. , is also conducive to the supervision of administrative law enforcement by the public and the news media, further ensuring that everyone is equal before the law and achieving openness, fairness and impartiality.

The sixth is to increase the intensity of judicial review of the discretionary power of administrative agencies by courts. The "Administrative Litigation Law" stipulates that the People's Court has limited judicial review and modification rights over the rationality of some administrative actions (such as administrative penalties) of administrative agencies. Law enforcement agencies have discretion within the statutory limits in determining the nature of facts, the choice of behavioral methods, and the severity of the circumstances. Therefore, there may be abuse of power, unfair administrative penalties, etc. It is necessary for the People's Court to increase the discretion of administrative agencies. strengthen the review of rights and give full play to the judicial supervision function of the court.

To sum up, how to control and standardize discretionary power must be based on a certain standard. It must be controlled but not exhausted, and used without abuse. Each law enforcement department must combine its own actual situation, relatively unify the scale of punishment, accurately use the discretion of administrative penalties, make the administrative penalties corresponding to each illegal act relatively consistent and appropriate, exercise discretion legally, reasonably, and fairly. , fair law enforcement and humane management to meet the legal needs of building a harmonious society.