On The Discretion Of Bureau Of Commerce And Industry's Administrative Penalty

Administrative Discretion is inevitable demand in the modern administration, for the complex social and economic activities, changing social phenomena, the use of Industrial and commercial Administrative Discretion, greatly improve the efficiency of the administration, a number of special social problems can be targeted and flexibly solved. Industrial and commercial administrative organs can resorts to the suitable methods and measures according to circumstances, and punish the offenders with different levels of punishment. For this reason, our law gives the executives Discretion within the scope permitted by law, flexible enforcement, improving administrative efficiency. This paper demonstrates the five aspects of the basic principles, the applicable principles, problems, solutions and significance of the Industrial and commercial Administrative Discretion.In the first part, the author defined the concept of the Industrial and commercial administrative penalty discretion, and analyzed its historical origins, its characteristics are five aspects, such as given of the main body of the exercise of power, the clothes of the exercise of powers, the program of the exercise of power. In practice, Industrial and commercial administrative penalty discretion's main expressions:First, the discretion in accordance with the statutory within the range; Secondly, the discretion of determining the nature of the illegal facts; Third, the discretion of determining the factual circumstances of the illegal; Fourth, the discretion of selecting the type and extent of punishment; Fifth, the discretion of choosing the punishment procedures; sixth, the discretion of selecting the limit of penalty time; Seventh, the discretion of determining whether the implementation of the administrative penaltyThe second part of this paper, according to the practice of Industrial and commercial administrative penalty discretion, made five applicable principles, namely: First, the principle of the punishment in keeping with the crime; mainly as administrative law relative to the fact that people should bear the blame and they should be impartial in the practice of the industry and commerce administrative enforcement and avoid penalties unbalanced. Second, the principle of openness; the principle of openness is designed to achieve justice and punishment relative to protect the legitimate rights and interests, and also the industrial and commercial administrative organs shall exercise the powers obligations. Third, the principle of equality; this principle is to avoid making any tendentious law enforcement, the way and magnitude of the punishment of similar cases are varied, industrial and commercial administrative organs of law enforcement should be fair, just, according to discretion, in line with people's normal logic. Fourth, the principle of combining punishment and education; administrative penalty is a kind of sanctions, which aims to punish offenders by offense, educate citizens, legal persons or other organizations to consciously abide by the laws and regulations. Fifth, the principle of legal procedures; the principle of legal procedures mainly in the internal procedures of internal control and external control of the program, it is the result of internal and external causes.The third part of this passage puts forward the problems existed in the Industrial and commercial administrative penalty discretion as well as analyses the cause. In the practicing progress of discretion, following problems are existing:First, the value orientation deviated from legal purpose; Second, misunderstanding of the original intention of the law and wrong execution of the law; Third, considering of unrelated facts based on improper intentions; Forth, improperly chose methods; Fifth, injustice punishments; Sixth, prevarication and delay of fulfilling the legal responsibilities, negative crime; Seventh, exposing punishments surpassing jurisdiction. As for the cause of formation, there are nine elements included:the freedom of discretion itself; the extent of discretion criterions; the wide range of legal regulations; the undistributed procedure system; the quality limits of the law enforcers; the malice interference of external factors; the limits of subsequence supervision and the imperfection of relief system led by restrict institution; the simplification of the punishment writing, the investigations of the misleading responsibilities are not implemented properly, and so on.In the forth part, aiming at the problems existing in the discretion of department in charge of industry and commerce, this passage makes out five solutions:First, beginning from the controlling method of exercising of discretion, reality and procedure control are posted. Second, Industrial and commercial administrative penalty discretion should be strengthened, perfect the responsibility system, increase evaluation system, and regularly training of the personnel. Third, standardize the system of discretion itself, establish and perfect the regulation of precedential punishment, so that the dealing of similar cases can abide by. Forth, perfect the supervision of discretion, mainly from administration reexamination and enquire misleading responsibilities.The fifth part of this passage discusses the formation of Industrial and commercial administrative penalty discretion, mainly based on three aspects:forming the system of administrational and commercial punishment discretion. Theory system is the basis of current laws and regulations. Therefore, firstly we should consider to begin from the formation of the theory system. The bureau of administration and commerce should set up the concept according to the law, perfect the laws regulations and rules, make the content of legislation more specific and comprehensive. Secondly, from the practice of formation of punishment discretion, three procedures are concluded; strict abidance of legal procedure,not excess of authority and hierarchy,fulfill the power of administrative subjects, realize the balance of power and rights between subjects.Secondly, the meaning of Industrial and commercial administrative penalty discretion system formation. First, it complete the shortage of legislation; Second, it improve the efficiency of administrational law enforcement, as well as the quality and efficiency; Third, it showed in the need of practical administrational law enforcement; Forth, it can increase the flexibility of practical administrational punishment.Thirdly, the formation system of the Industrial and commercial administrative penalty discretion. It registered as dynamic mechanism and restrain mechanism. Dynamic system is also called excitation mechanism, including material factors,responsible factors and personal enterprise. Restrain mechanism is:aiming at the exercise of administrational and commercial power, make out proper institutional restrain.