Viewpoint | Research on selective law enforcement and its governance

Published:

2021-11-19

Text In the early stage of economic development, due to the imperfect system of various systems and frequent environmental changes, the consequences of economic reform were extremely unpredictable. In order to deal with the problems in the process of law enforcement, the state adopted selective law enforcement, that is, the law enforcement subjects carried out different law enforcement according to different circumstances and objects, which flexibly made up for the disadvantages of rigid legal constraints. With the continuous improvement of the market economic system and the continuous improvement of the rule of law construction system, the unpredictability of the consequences of the reform has declined. However, with the deepening of the reform, the disadvantages of selective law enforcement continue to highlight, such as excessive discretionary space, abuse of public power, illegal law enforcement and so on. Zhu Zhengfu, member of the National Committee of the Chinese people's Political Consultative Conference and vice president of the all China Lawyers Association, said that if selective and profit-seeking law enforcement is not curbed, entrepreneurs are very vulnerable to the abuse of judicial power. Therefore, measures should be taken to prevent unreasonable selective law enforcement. Analysis of Advantages and Disadvantages of 1. Selective Law Enforcement 1. The positive impact of selective law enforcement: it is conducive to saving judicial costs. The market environment is extremely unstable, and legal adjustments alone are not enough to solve problems flexibly. The optimal law enforcement theory of economics verifies the advantages of selective law enforcement, that is, the law enforcement behavior with excessive law enforcement cost should be solved in a random way, so that the punishment intensity is inversely proportional to the random probability. In the process of law enforcement, our country meets the practical needs through the change of law enforcement behavior and law enforcement intensity. On the one hand, when dealing with emergencies, law enforcement agencies achieve the best law enforcement effect by adopting law enforcement methods that adapt to emergency situations; on the other hand, the lag of laws is often not enough to solve practical problems. When laws, regulations, and rules are not clearly defined, law enforcement agencies can exercise discretion and adopt appropriate solutions and staffing to solve them in a timely and effective manner, to make up for the limited legal rules of the rapid development of the society can not make changes in time; to solve the sudden problems in time. The occurrence of sudden social problems has the characteristics of great influence, rapid spread and urgency, which requires law enforcement agencies not to blindly follow the articles of association to solve them step by step, but should take different intensity of law enforcement means in combination with specific situations. For example, in 2004, three types of cases of gangs, violence, and theft occurred frequently. For this reason, severe crackdowns were taken against these three types of serious crimes; in 2007, severe crackdowns were also taken against the frequent occurrence of bicycle theft; In 2010, there were more criminal cases, focusing on individual extreme violent crimes, gun-related crimes, and "pornography, gambling, and drugs" crimes. Therefore, in view of the criminal situations in different historical periods, the state has adopted a severe crackdown policy to deal with prominent harmful behaviors. 2. Negative impact of selective enforcement: impaired legal authority. Locke pointed out in "On Government" that all the powers of the government, since they are only for the happiness of society, should not be arbitrary and happy, but should be exercised according to established and published laws. Selective law enforcement is not arbitrary law enforcement, it still has to exercise its powers within the framework of the law. However, with the expansion of law enforcement power, "cross-border implementation of authority" has become the norm. Law enforcement officers simply rely on subjective likes and dislikes to deliberately distinguish law enforcement, and the phenomenon of "violating the rule of law for the sake of the rule of law" appears. Law is normative and deterministic. In the field of administrative law, law enforcement agencies first follow the principle of legality and pursue the purpose of "law cannot be authorized. If there is universal selective law enforcement, the authority of the law will be damaged, citizens' belief in the rule of law will be missing, which is not conducive to the construction of a country ruled by law; the credibility of law enforcement agencies will be damaged. With the increase of unreasonable selective law enforcement, power rent-seeking behavior appears on a large scale. Those with public power use power as a bargaining chip to seek their own economic interests, or use power as capital to participate in commodity exchange and market competition for monetary and material benefits. This kind of behavior seriously hinders the construction of the rule of law in the country, leads to the corruption of power, the contradiction between social equality and the distribution of interests. Analysis of the Current Situation of Selective Law Enforcement in 2. 1. Administrative discretion is too large. The primary manifestation of selective law enforcement is the excessive expansion of discretion. Because our country's law does not clearly stipulate the limits of the administrative agency's exercise of discretion, it leads to different judgments in the same case and the current situation of unfair law enforcement. In 2006, in the case of administrative punishment for industry and commerce in Wuxi County, Wuxi County Administration for Industry and Commerce issued a fine of 10000 yuan, 30000 yuan and 80000 yuan to the punished persons Wang Mou, Tan Mou and Liao Mou with the administrative punishment decision No. 145 of (2003) Xi Industry and Commerce Penalty. Afterwards, Liao filed an administrative lawsuit with the Wuxi County People's Court on the grounds of the same act and different penalties. The case caused public dissatisfaction with the opaque law enforcement process and unfair law enforcement results of law enforcement agencies. Although according to the law, the amount of punishment given to Liao by law enforcement agencies is within the scope of authority, but the result of different judgments in the same case reflects the discretion of administrative agencies. Excessive power provides rent-seeking space for law enforcement and damages the public's trust in law enforcement results. 2. Administrative law enforcement supervision is not in place. Selective law enforcement reflects not only law enforcement issues, but also legislative issues. But at present, whether it is the court, the procuratorate, or the higher authorities, the supervision of law enforcement is still not in place. For example, with the emergence of the current situation of "replacing punishment with punishment", administrative organs are often driven by economic interests to avoid criminal punishment by being in administrative punishment. On the one hand, it is easy to cause criminals to escape legal sanctions, on the other hand, it makes the law enforcement environment tend to be bad, reflecting the procuratorial organs' ineffective supervision of administrative law enforcement. Therefore, the procuratorial organs should carry out special actions to prevent "punishment instead of punishment. Not only the procuratorate, but in administrative litigation cases, the court should also stop the inaction and chaos of the administrative agency on the basis of ascertaining the facts. Analysis of Typical Cases of 3. Selective Law Enforcement 1. Haikou "most beautiful illegal construction" case. In June 2016, Hainan Province issued the "Three-Year Action Plan for Rectifying Illegal Buildings in Hainan Province" to demolish illegal buildings. However, after being reported by the masses, a mansion in Xiuying District of Hainan Province was demolished. According to the investigation, the illegal mansion was designated as an illegal building as early as July 2013, and the authorities also issued a demolition notice, but it was not implemented. In 2015, a reminder was also issued to inform the demolition as soon as possible, but the illegal mansion still exists. Local villagers reported that the residents of the mansion were national civil servants, and the family ran the quarry, with wealth and strength, which led to the protection of law enforcement officers with their officials, collusion between officials and businessmen, and illegal buildings have not been demolished. Illegal construction has always been a typical case of selective law enforcement by law enforcement personnel, usually because of the strong background of the violator, the law enforcement personnel selectively enforce the law and evade legal responsibility, and finally the illegal construction becomes the "landmark and most beautiful illegal construction". 2. Japanese Keiichiro Kheyuan lost his car. In February 2012, when Heyuan Keiichiro was playing in Wuhan, his bicycle worth 10,000 yuan was lost. The Wuhan police actively called in the police force and solved the case in three days, which aroused many people's praise. Subsequently, many car owners have reported to the police, asking to find the vehicle, but the Wuhan police ignored. In this case, for similar Qing Festival, they were treated differently because of different objects, which reflected the obvious selective law enforcement characteristics of law enforcement officers. 4. the Governance Measures of Improving Selective Law Enforcement 1. Improve legislation and limit the boundaries of administrative power. The essence of selective law enforcement lies in the blurring of the boundaries of discretion and the strong subjectivity of law enforcement behavior. Therefore, only by limiting the boundaries of discretion can we fundamentally curb unreasonable selective law enforcement. The scope of administrative law is wide, but the legal provisions are not clear. Therefore, we should improve the administrative legislation and define the conditions for the exercise of administrative discretion. On October 23, 2014, the Central Committee of the Communist Party of China pointed out in the decision on several major issues of comprehensively promoting the rule of law, establishing and improving the benchmark system of administrative discretion, refining and quantifying the standards of administrative discretion, and standardizing the scope, type and range of discretion. Therefore, administrative rules should be refined so that law enforcement can be traced. 2. Strengthen the supervision of administrative power. As mentioned above, selective law enforcement has the disadvantages of lax supervision, so we should strengthen its supervision. Specifically, it includes the internal supervision of administrative organs, judicial supervision and social supervision. If you are not satisfied with a specific administrative act, you can file a reconsideration with the higher authority, which shows that the higher authority has a natural supervisory function over the lower authority. Lower-level agencies should regularly submit statements on their work tasks, which should be reviewed by higher-level agencies to reduce the exercise of discretionary power; courts and procuratorates should supervise administrative actions and supervise administrative actions and law enforcement personnel; at the same time, strengthen public opinion supervision. The disclosure of most of the above-mentioned cases is a controversy caused by the dissatisfaction of the public. Therefore, the public and the media should supervise the law enforcement behavior. Although selective law enforcement has played a positive regulatory role in the period of economic transition, with the continuous improvement of the market economic system and the strengthening of the awareness of the rule of law, selective law enforcement has gradually emerged with the disadvantages of excessive discretion and private public power. Selective law enforcement such as "strict crackdown" and "law enforcement movement" that exert positive effects should be implemented. However, my country's current selective law enforcement has disadvantages such as excessive administrative discretion and inadequate administrative law enforcement supervision. It can be seen that selective law enforcement seriously hinders the construction of the rule of law. To this end, we should control selective violations, improve legislation, limit the boundaries of administrative power, strengthen the supervision of administrative power, and improve the quality of law enforcement personnel. Only in this way can we ensure the legitimacy and rationality of administrative actions.

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