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Research on the Mechanism of Self-Control of Discretion in Administrative Punishment Imposed by Administrations for Industry and Commerce

Author: WangLiHui
Tutor: ZouRong
School: East China University of Political Science
Course: Constitutional and Administrative Law
Keywords: Administration for Industry and Commerce administrative punishment discretion and self-control mechanism
CLC: D922.1
Type: Master's thesis
Year: 2010
Downloads: 309
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Abstract


The discretion possessed by administrations for industry and commerce (“AIC”) in administrative punishment is a critical authority for AIC. Proper exercise of such authority may not only increase the efficiency of AIC’s enforcement of laws, but may also promote the substantive justice in individual cases. However, such authority exists in a wide range and may be abused in the law enforcement. If arbitrarily used, it may infringe the lawful interests of others and bring serious adverse impact on AIC’s authority. Therefore, how AIC’s such discretion shall be regulated is a topic concerned by both scholars and practitioners. The author, based on the researchers already done by others as well as his own years of practicing in the AIC law enforcement, has done a systematic research on how AIC authorities should frame a self-control mechanism for the discretion in administrative punishment.This Paper consists of three chapters.First Chapter: Theoretical Analysis of AIC’s Discretion in Administrative Punishment. This Chapter discusses the theoretical foundation of this paper. The author starts his discussion from the concept as well as the rationale for the creation and development of AIC’s discretion, summarizes the core elements and the features thereof, and provides an analysis of the necessary of such discretion based on AIC’s practical responsibilities. Analysis of such theoretical issues is the foundation to further research on regulation of AIC’s discretion in administrative punishment.Chapter Two: Research on Current Situation of AIC’s Discretion of Administrative Punishment. In this Chapter, the author first summarizes six forms of AIC’s discretion in conjunction with the practices of enforcement activities of AIC’s authority. Secondly, the author, through discussions on typical cases arising in administrative reviews, lawsuits and hearings, analyzes in more detail the major issues existing in exercising such discretion. Finally, the author examines the reasons causing such issues from both subjective and objective perspectives.Chapter Three: Consideration of the Structure to Regulate AIC’s Discretion. In this Chapter, the author proposes a framework to structure the self-control mechanism with regards to AIC’s discretion in administrative punishment from three aspects: (i) substantively control the exercise of such discretion through setup of substantive criteria and guidance of exemplary cases; (ii) procedurally control the exercise of such discretion by means of establishing procedural rules and strengthening exchange of interests; (iii) strengthen the supervision on the practice of administrative punishment discretion through ways such as hierarchy supervision functions of reconsideration mechanisms and establishment of long-term supervision mechanisms.

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CLC: > Political, legal > Legal > Chinese law > Administrative law
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