公安机关论文：公安机关行政自由裁量权研究
【中文摘要】行政自由裁量权是现代行政法的核心问题 , 它就像 一把“双刃剑” , 用的得当 , 能够实现个案正义；用的不得当 , 就会极 大的侵害相对人的合法权益。 这种强大的行政权 , 一方面 , 对公安机关 是行政执法工作的巨大优势 , 即公安机关行政自由裁量权的运行起到 了维护公共利益、维护公共秩序、提高行政效率、实现国家统治的作 用；另一方面 , 容易对行政相对人的正当权益造成损害。为了防止公 安机关滥用行政自由裁量权 , 很多地方行政机关都在摸索制定一些裁 量基准 , 从事前、事中的角度进行控制。法院也在探索如何从事后的 角度、从司法审查的角度有效地控制行政自由裁量权的滥用。但是 , 《中华人民共和国行政诉讼法》 中规定的一些审查标准 , 如滥用职权、 显失公正 , 只是原则性的规定 , 至今缺少详细的司法解释。 这不便于各 级法院在行政审判中准确地适用上述法律规定 , 在审判实践中也容易 发生偏颇。这种现状和行政法理论研究在这方面还没有完全展开有关 系。本文希望通过对公安机关自由裁量权产生的背景、 理论进行分析 , 全面阐述公安机关执法中滥用自由裁量权的来龙去脉。 针对现实中存 在的自由裁量权滥用问题 , 提出切实可行的对策 , 为防止公安机关自 由裁量权滥用提供参考。
【英文摘要】 Administrative discretion plays an irreplaceable role of
the need of modern administration, the improvement of administrative efficiency, the achievement of the rule of law, and the need of the increasingly changing
society. But on the other hand, Administrative discretion is a double-
edged sword, it may be abuse of executive authority, directly against the legitimate interests of the executive relative, alienation of the chief of power and corruption, and thus pose a serious threat to the rule of law. In my opinion, the public security organ for administrative discretion and may be widespread abuse of the facts, shall include the establishment of a legislative control, administrative supervision, judicial review, that is a full range of legal control system. The aim is that strict control of administrative discretion in the laws enacted by the legislature within the scope of executive authority to ensure the legitimacy of the exercise of discretion. This control model for the coordination of administrative discretion and the rule of law and relations is to ensure strict administrative discretion is subject to the rule of law, which has an important role. This paper argues that to build a “harmonious
enforcement ” of the environment is necessary to rapid development of China 's social stability and economic background. Constitute a
“ harmonious law enforcement ” must
be a two-way, one at the public security organs to make punishment for violations, according to law regulations, legal procedures, taking into account factors relevant factors make reasonable discretion. The second is the object of punishment is punishment was no reason to resist. It would appear that the public security organs in order to prevent the abuse of discretion, we need to build a comprehensive meansof control,
namely through the combination of internal and external control means, and by improving the system of administrative review and litigation of public security in the misuse of administrative discretion control.The first section of the article, mainly analysis in the definition of the public security organs discretion, the discretion of the public security organs and the classification of general characteristics of the narrative, the public security organs discussed the existence of administrative discretion basis. Public security organs according to the exercise of executive power subject to the availability of administrative flexibility in the application of legal norms as the standard, the public security organs of the restrictions there can be divided into administrative action and discretion of the administrative action. Public security organs of administrative action the restrictions there is the public security organs and their staff on the application of administrative law did not regulate the flexibility of administrative action, administrative action is discretionary public security organs and their staff on the administrative law norms applicable to flexible Administrative behavior. The reason to make such a requirement is because of the fact that certain laws can be madein legislation, uniform regulations, and the fact that certain laws can not makeuniform regulations, public security organs and their staff need these legal facts of the specific factors decided to apply the law.The second section of the article analyses the status of administrative
公安机关论文：公安机关行政自由裁量权研究
