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1、 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
2、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。这种现状与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 admin
3、istration, 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
4、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, ad
5、ministrative 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 mod
6、el 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 develop
7、ment of Chinas 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 disc
8、retion. 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 means of control, namely through the combination of internal and external control means,
9、 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 th
10、e 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 leg
11、al 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 applicatio
12、n 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 fac
13、t that certain laws can be made in legislation, uniform regulations, and the fact that certain laws can not make uniform 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 o
14、f administrative discretion of public security organs in China. Public security organs in the exercise of administrative discretion, if exercised correctly will be able to play the public interest, maintain public order, the role of administrative efficiency, but if the abuse of administrative discr
15、etion, contrary to the purposes authorized by law and will, it is easy interference and damage the social order, but also relatively easy to damage the legitimate rights and interests. In practice, the public security administrative discretion is abused, there is two major manifestations, namely, ab
16、use of power and is obviously unfair. Police abuse of power that the executive authorities in the exercise of administrative functions, although the form of legal, but contrary to the public security laws and regulations to give the purpose of the executive powers, and generally is intentionally sub
17、jective; obviously unfair, generally confined to the Chief of Police Administrative organs penalties are in this area, that are legitimate forms of administrative action, but acts as an obvious injustice to grasp the degree of punishment at the expense of the legitimate rights and interests of the r
18、elative, subjective and generally out of their negligence, but also with significant loss of impartiality on the results of elements, if the subjective intent to cause significant loss of impartiality on the results, all belong to the scope of abuse of power. Public Security Organs abuse of administ
19、rative discretion main reasons are:inadequate legislation, different standards of discretion, the law enforcement body is not strong awareness of law enforcement, supervision of administrative discretion is not in place, lack of judicial review system, and many other issues.The third main section of
20、 the article is abuse of discretion of the public security organ, making relevant means of control. Including internal control and external control, the internal control first of all, is to strengthen the enforcement of police force building, through the development of a number of regulations to res
21、trict the level of law enforcement by public security officers, and secondly, to strengthen the administrative practice of the public security organs of administrative discretion, administrative practice is on the administrative matters of the same or have the same, after a long-term, general, conti
22、nued or repeated for the purposes, then to administrative measures that have become the general practice of general practice can be regarded as such an administrative practice Administrative practices can limit the arbitrary discretion, to prevent co-vary sentence, the relative damage to peoples int
23、erests. Finally, detailed reference to the administrative discretion to punish the public security organs in a more reasonable time scale. Administrative review is the legitimacy of the right to exercise reasonable supervision of, but only the legality of administrative litigation supervision. Combi
24、ned with the practice of administrative review, recommendations should be considered suitable for China to gradually establish “administrative judges” system to enhance the administrative review body and review the independence of staff, reduce administrative authorities or other persons interfering
25、 in, and enhance supervision of the administrative review performance. Public security organs must be based according to law, the purpose of strengthening the police contingent, fully aware of the public security administrative reconsideration of the importance of institution-building, from the orga
26、nization and the comprehensive promotion professionals with both the construction of public security administrative review. Public construction work of administrative reconsideration is the executive level of law enforcement Police embodiment, also urged the public security administrative organs acc
27、ording to law an effective way. External control, first of all, the premise of legislation is the control of public security administrative discretion and to improve the quality of legislation to strengthen the legal operational, as much as possible to reduce the magnitude and breadth of discretion.
28、 Improve the procedural legislation, procedures for administrative action. Chief Administrative Procedure Act is an important complement to the substantive law is to suppress the public security administrative discretion an important means, which restricts the exercise of executive power, to maintai
29、n the correct operation of the executive power, is also of great significance to improve administrative efficiency. Social control, our country should speed up the improvement in the current petition system, and clear the way citizen complaints and appeals, while strengthening the social norms and t
30、he supervisory role of administrative discretion to the supervision of the state through legal channels to transfer the supervision. Although society does not have direct supervision of mandatory and binding, but it plays an irreplaceable role in the process of discretion of control of the executive
31、. Administrative Litigation in China, because of the wide range of public security organs of administrative discretion has features with greater elasticity. Therefore, the public security organs abuse of administrative discretion, very easy to damage the interests of the relative, and now, the publi
32、c security organs abuse of discretion, most of them are dressed legitimacy. Therefore, judicial review of the current limitations, we need a more effective means of review, no doubt the introduction of “the principle of rationality” is an effective means of judicial review is “the principle of legal
33、ity” as a supplement. Mediation is the administrative proceedings in the administrative proceedings, the parties recognized in the peoples court or the participation of some of the disputed administrative act on a voluntary basis, through communication, to reach a consensus, so as to solve disputes
34、and litigation activities of a closed way. According to the provisions of the Administrative Procedure Law of China, in the administrative litigation, mediation system is not applicable, but in compensation cases, for compensation for mediation. Although the current administrative system of the conc
35、iliation proceedings did not include the law, but in terms of judicial practice of administrative cases, there are a large number of administrative cases by some form of mediation, it appears that this law prohibits mediation the provision does not set but the practice of administrative trial, but t
36、he way of active non-institutionalized in the administrative proceedings.【关键词】公安机关 自由裁量权 执法 控制【英文关键词】【目录】公安机关行政自由裁量权研究内容提要4-6引言6-8一、公安机关行政自由裁量权概述8-13(一) 公安机关行政自由裁量权概念8-9(二) 公安机关行政自由裁量权的分类9-10(三) 公安机关行政自由裁量权存在的基础10-13二、我国公安机关行政自由裁量权的现状分析13-23(一) 公安机关行政自由裁量权的行使13-15(二) 公安机关滥用行政自由裁量权的表现形式15-18(三) 公安机关滥用行政自由裁量权的危害18-19(四) 公安机关滥用行政自由裁量权的原因19-23三、我国公安机关行政自由裁量权的控制23-37(一) 公安机关行政自由裁量权的内部控制23-30(二) 公安机关行政自由裁量权的外部控制30-37结论37-38参考文献38-41中文摘要41-44Abstract44-47后记48