Administrative law enforcement and administrative discretion

The administrative law enforcement personnel in the transportation management department are the main body to exercise discretion, and improving the quality of law enforcement personnel is the key to control the abuse of discretion. All transportation management departments should strengthen the education and training of discretion and carry out various forms of learning and discussion activities. Through self-examination, criticism and self-criticism, we can find out the problems existing in the minds of law enforcement personnel, correct the concept of law enforcement, improve road literacy, and correct the long-standing misconception that "discretion is a space given by law to law enforcement organs and law enforcement personnel to decide independently, and administrative penalties can be imposed at will in this space". So as to lay a solid foundation for administrative law enforcement personnel to correctly exercise their discretion and standardize administrative behavior.

First, the form of discretion in laws and regulations.

1, depending on the nature of the facts

Article 75 of the Road Regulations stipulates that motor vehicle driver training institutions violate the provisions of these regulations, fail to conduct training in strict accordance with the regulations, or resort to deceit when issuing training certificates. The motor vehicle driver training institutions mentioned in this clause are not strictly in 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 stipulate specific standards, and the law enforcement departments of transportation have great discretion in the characterization of "not strictly in accordance with the regulations".

2, the discretion of the seriousness of the illegal act.

Words like "serious circumstances" often appear in traffic laws and regulations. For example, Article 70 of the Highway Regulations stipulates that in violation of the provisions of these regulations, if a passenger transport operator or a freight transport operator has any of the following circumstances, the road transport management institution at or above the county level shall order it to make corrections and impose a fine ranging from 1000 yuan to 3,000 yuan; If the circumstances are serious, the road transport business license shall be revoked by the original licensing authority. What is the seriousness standard of this clause? If there are no specific provisions in laws and regulations, the administrative law enforcement departments of transportation have greater discretion in determining the severity of illegal acts.

3. Discretionary punishment for violation of regulations.

This form can be seen everywhere on the knife, and it is also the simplest and most intuitive discretion of our traffic law enforcement personnel. For example, Article 71 of the Highway Regulations stipulates that if passenger transport operators and freight transport operators fail to maintain and test transport vehicles in accordance with the regulations, the road transport management institution at or above the county level shall order them to make corrections and impose a fine ranging from 1000 yuan to 5,000 yuan. Our traffic law enforcement officers can choose between 1000 yuan and 5000 yuan, which is very discretionary.

Second, the current situation of discretion in traffic administrative law enforcement

1, the law enforcement officers of transportation management are not aware of the correct exercise of discretion.

Under the influence of traditional administrative law enforcement, law enforcement personnel focus on the basis of administrative punishment, law enforcement methods and procedures, and simply pursue civilized law enforcement, standardized law enforcement and strict law enforcement. Some law enforcement officers are unfamiliar with the special word and new word "discretion", do not understand its meaning, and pay little attention to "free loading right", thus ignoring the fairness and rationality of discretion. These law enforcement officers, including unit leaders, feel that legal basis and legal procedures are important factors to determine whether an administrative punishment case is legal, and discretion is the "space" given by laws and regulations to law enforcement agencies and law enforcement officers to decide independently. In this "space", administrative punishment can be carried out at will, as long as it meets the conditions stipulated by law, which also makes the counterpart of administrative punishment "speechless" and will not lose in the case of administrative litigation.

A friend of the author bought a big truck a year ago. When he was operating in a city in Chongqing, he was seized by the local transportation management office and found that he did not apply for a road transport permit. The institute decided to impose an administrative penalty of 30,000 yuan on him. He can't accept the economic penalty of 30 thousand yuan, raise an objection and find the theory of the institute. The law enforcement officer in charge of the case gave him "ideological work" and said, "We will punish you according to Article 64 of the Highway Regulations. I can also fine you 50,000 or 65,438+10,000 and fine you 30,000. It is because you have a good attitude to accept punishment that you will be punished less. This is your care. " From this point of view, how flexible the discretion is, this problem urgently needs the thinking of transportation management departments at all levels.

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

For example, Article 7 1 of China's current Highway Regulations stipulates that "those who engage in road transport business activities without obtaining a road transport business license" may confiscate their illegal income and impose a fine of more than 30,000 yuan and less than 654.38+10,000 yuan. The penalty amount and flexibility are too large. The fine is often several times the value of a car, and the fine can make the operator lose everything. Regarding the punishment scale stipulated in the relevant laws and regulations on road transport management, the author has consulted the relevant materials, and there is no relevant law that clearly stipulates under what circumstances and by what standards fines will be imposed. At present, the potential punishment range in the process of administrative law enforcement depends on whether the counterpart of administrative punishment is local, whether the attitude of accepting punishment is good, whether he has social relations and status, and whether he can speak well. The extent of punishment depends entirely on the subjective consciousness of law enforcement personnel. At present, under the premise that the legal quality of the grass-roots transportation law enforcement team in China is not very high, it is urgent to formulate a feasible "Implementation Measures of Discretion" in the face of such legal provisions.

3. The exercise of discretion breeds corruption in the law enforcement team of transportation administration.

According to the author's understanding, at present, in the process of punishing illegal business operations in the transportation market, the punishment standards of counties and cities vary greatly under the condition that the illegal circumstances are basically the same. For example, the amount of fines for "black cars" seized in other counties in Zigui is also very different from that seized in Zigui. Even in the same unit, for two identical illegal cases, the punishment results may be very different because of the subjective randomness of administrative law enforcement personnel.

Every law enforcement officer has seen this fact to some extent. When a car was seized by the transportation management department for illegal operation, after some "accommodation", it was finally told that "it won't happen again" and released without a fine; You can also give "preferential treatment" or disguised punishment or even no punishment within the scope permitted by law through warm hospitality and active "tackling key problems"; Some transportation management offices also have the phenomenon of "bargaining" and "credit" for administrative penalties and fines; In addition, in the process of dealing with illegal "black cars", we ask ourselves, how many "black cars" were fined more than 1 10,000 yuan? Didn't they get punished? After all kinds of effective "dredging" by the operators of "black cars", the law enforcement officers of the Transportation Management Office can arbitrarily find a clause with a small amount of fines to punish "black cars". After the "research funds" are removed, the illegal car owners are also "cost-effective", and naturally they will not be "skinned" because the illegal facts do not match the punishment basis. Wait, wait. This kind of arbitrary exercise of administrative law enforcement discretion in law enforcement cases, even changing the punishment for illegal facts, has caused the phenomenon of unbalanced administrative punishment for the same illegal fact, which undoubtedly makes us doubt the credibility of administrative law enforcement-how to ensure justice 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 officers to abuse power for personal gain and breeds corruption in the law enforcement team of transportation administration.

Second, talk about the control method of discretion in the process of traffic law enforcement.

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

The administrative law enforcement personnel in the transportation management department are the main body to exercise discretion, and improving the quality of law enforcement personnel is the key to control the abuse of discretion. All transportation management departments should strengthen the education and training of discretion and carry out various forms of learning and discussion activities. Through self-examination, criticism and self-criticism, we can find out the problems existing in the minds of law enforcement personnel, correct the concept of law enforcement, improve road literacy, and correct the long-standing misconception that "discretion is a space given by law to law enforcement organs and law enforcement personnel to decide independently, and administrative penalties can be imposed at will in this space". So as to lay a solid foundation for administrative law enforcement personnel to correctly exercise their discretion and standardize administrative behavior.

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

Competent departments at all levels should formulate practical "Measures for the Implementation of Discretion" in combination with the actual situation, decompose and refine the illegal circumstances, illegal amount and administrative punishment standards of relevant laws and regulations, and explain and explain the vague provisions in detail, so as to provide law enforcement basis for grassroots law enforcement personnel. Avoid all kinds of disadvantages caused by excessive discretion in administrative punishment, and enhance the unity and seriousness of law enforcement.

For example, for unlicensed operation, according to the provisions of the Highway Regulations, if there is illegal income, the illegal income will be confiscated and a fine of more than 2 times 10 times will be imposed; If there is no illegal income or the illegal income is less than 6,543,800 yuan, a fine of 20,000 yuan to 6,543,800 yuan will be imposed. However, the amount of fines under what circumstances cannot be broken down. In the formulation of the "Measures for the Implementation of Discretion", it can be clearly stipulated that if the party violates the rules for the first time and the amount of illegal income is small, how much fine will be imposed. How many fines will be imposed if the party concerned has no fixed occupation, or is an immigrant or laid-off worker who has no source of livelihood and takes illegal business activities as his source of livelihood? The parties involved in unlicensed business activities have been arrested many times; The parties have resistance to law enforcement or violent resistance to the law; Or take revenge on law enforcement officers or informants, and if it is verified, how much fine shall be imposed. Determine the punishment standards in detail according to different situations, so that the corresponding illegal situations are seated accordingly. For the terms such as "serious circumstances" in the road clauses, the specific criteria for serious circumstances are explained in detail. For the "relevant provisions" and other provisions in the "road" clause, clear and specific provisions are made.

In addition, in the process of formulating the implementation measures of discretion, we should fully consider the principle of lighter, mitigated or aggravated punishment. For example, "those who resist inspection in the process of law enforcement agencies investigating and handling illegal acts in transportation management, and have acts of obstructing official duties and violently resisting the law" can be severely punished; "Those who voluntarily eliminate or mitigate the consequences of illegal acts" may be given a lighter or mitigated punishment. After the formulation of the "Measures", when the transportation management institution implements administrative punishment, if the specific amount of punishment has been determined for the illegal act, it must be punished according to the amount. If there are no provisions, in principle, it must be handled in accordance with the punishment range and median standard stipulated by laws and regulations. Penalties below or above the median should meet the corresponding conditions.

After refining the regulations in this way, first, law enforcement officers can have rules to follow; Second, it can avoid all kinds of corruption caused by excessive discretion; Third, it can safeguard the fairness, justice and rationality of laws and regulations.

3. Strengthen system management, and solve the problem that the free carrying right is too "free" from the source.

The first is to establish an avoidance system. In the process of administrative law enforcement, if there is an interest relationship or other related relationship between the law enforcement personnel and the law enforcement object, the unit leader shall ask the law enforcement personnel to withdraw. If the unit leader needs to withdraw, the group will make a collective decision. This effectively avoids the occurrence of human cases and relationship cases.

The second is to establish a law enforcement responsibility system. It is necessary to clearly distinguish whether the abuse of discretion is subjective or objective; Is it occasionally abused or always abused, and so on. , distinguish between different responsibilities. Link responsibility with personal treatment and job promotion, and truly implement the law enforcement responsibility system.

The third is to establish and improve the separation of punishment and payment, law enforcement and punishment. The combination of law enforcement and punishment has formed a greater discretion of administrative punishment, which can be controlled to a certain extent after decentralization. The separation of penalty and payment has also been proposed for many years, but many transportation management departments have not seriously implemented it. The competent department should strengthen the supervision of the implementation of this system to ensure that this system is implemented in place, which can also effectively avoid corruption.

Fourth, regular follow-up inspection and continuous improvement of discretion standards. Discretion standard is the principle standard for law enforcement agencies to reasonably refine and determine administrative punishment within the scope of discretion according to local actual conditions when there is no clear space in laws and regulations. The competent department at a higher level should intensify the inspection of administrative law enforcement of all law enforcement units, focusing on whether the exercise of discretion by all law enforcement units is fair, open, just and reasonable. Whether there is any phenomenon of arbitrarily filling in illegal facts on the fine bill; Whether there is a phenomenon that the amount of penalties for vehicles with the same illegal facts is too large.

The fifth is to open the standard of discretion and accept social supervision. After formulating the standard of administrative penalty discretion, law enforcement organs shall make it widely known to the public. In this way, the relative person can compare his own illegal behavior and get the punishment scale that the law enforcement agency will give him. This will not only let the law enforcers know fairly well, but also let the masses see clearly and get the recognition of the society and the parties. It will also help the public and the news media to supervise administrative law enforcement, further ensure equality before the law, and achieve openness, fairness and justice.

Sixth, strengthen the court's judicial review of the administrative organ's discretion. The Administrative Procedure Law stipulates that the people's courts have limited judicial review power and have the right to change the rationality of some administrative acts (such as administrative punishment) of administrative organs. Law enforcement agencies can determine the nature of the facts, the choice of behavior and the seriousness of the circumstances within the statutory scope, so there may be cases of abuse of power and administrative punishment of obviously unfair. It is necessary for the people's court to strengthen the review of the discretion of administrative organs and give full play to the judicial supervision function of the court.

To sum up, how to control and standardize the discretion, there must be a scale, control is immortal, and use is not abused. All law enforcement departments must combine their own reality, relatively unify the scale of measurement and punishment, accurately use the discretion of administrative punishment, make the administrative punishment corresponding to each illegal act relatively consistent and appropriate, legally and reasonably exercise the discretion, enforce the law fairly and impartially, and implement humanized management to meet the legal needs of building a harmonious society.