Prison Under Administrative Law, As The Threshold Of Discretion

In the conditions of society democracy and the rule of law, the termination of legal the law is the threshold of enforcers'discretion . [1] The conflict between the lag of legislation on prison criminal and the request of development in economical society, and the conflict between the limitations of legal clauses and the universality of prison practices, decide the result that the existing of discretion by prison constabulary is possible and necessary . Prison discretion is the right of taking flexible process on criminals'circumstance , rewards ,penalty, education and organizasion of working.It is in order to realized the education reform of criminals, according to the laws,rules and regulations on principles, spirit, scope and extent, combined with the individual situation of criminals. It has many features as statutory, independence selectivity, relativity and specificity . The ideology of "Active rule of law enforcement process individualism" , the properties of legal enforcement , the limitation of statute, the individual fairness on Prison executing , the efficiency of jail management, the special conditions in our country and the characteristics on jail management are all cause the existence of prison discretion as legal theory and social basis. Widely using of Prison constabulary discretion is becoming the basic method and important characteristic on accomplishing prison execution and management. However, the existence of discretion is a powerful supplement to prison rule of law , but also for the destruction of prison rule of law.Because as the opportunity of discretion increasing, the posibility of abusing prison constabulary discretion must be increasing. So for pursuing and realizing legal equity and justice,it is integrant to minimizing abuse and strengthening control on police discretion right.