Selective law enforcement is in the legal practiceobjective existenceThere are two different versions of its definition: one is that the subject of law enforcement deliberately adopts different treatment to different jurisdictional objects, which violates the justice of law enforcement;The second is that the state tries to obtain flexibility and effectiveness according to the changing circumstances, andLaw enforcementAdjustments made on.
Selective law enforcement, that is, at the timespaceThe selective enforcement of laws on the object is due to the high uncertainty of the time, space and individual of violations. To ensure the effective implementation of these laws, huge resources of law enforcement are needed.The law enforcement subject deliberately adopts different treatment to different jurisdiction objects, which violates the justice of law enforcement;The adjustment made by the state in law enforcement in an attempt to obtain flexibility and effectiveness according to the changing circumstances.
Just because selective law enforcement uses less law enforcement resources to promote the implementation of the law, it also has an inevitable focus, which runs counter to the goal of the rule of law, so it is reasonable that it is given two different definitions of praise and criticism, which reflects the contradiction between fairness and efficiency.However, it must be affirmed that selective law enforcement is a law enforcement strategy that must exist, and its positive and negative effects may be derived. Therefore, all research on it can only consider how to make up for, regulate, and let efficiency and fairness go hand in hand, rather than give up.
Fundamental characteristics
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Selective law enforcement
The fundamental characteristic of selective law enforcement is selective law enforcement in time, space and object, which is also the literal meaning of "selective law enforcement".The reason for the existence of selective law enforcement is that with the continuous development of society, all aspects of society have more frequent contacts and more complex relationships, and more and more contradictions and problems need to be settled by law. From the birth and death of individuals to the public management of society, from the daily activities of units to the business behavior of enterprises, specific legal relationships may be involved.At the same time, the law executor and the opposite party are always asymmetric, and it is impossible to "tie a grasshopper with a rope" - one-to-one linear control. The time, space and individual of illegal activities are always highly uncertain.To ensure the effective implementation of these laws, huge law enforcement resources are needed, but the ability of society to support public goods has always been limited, making law enforcement always passive and can only be carried out selectively.
Main role
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Positive effect
Through flexible individual law enforcement, from point to area, a wide range of deterrent effects and demonstration effects will be generated to stimulate the awareness of self-examination and illegal risks, so that the legal order can be maintained to a certain extent, and law enforcement resources and costs can be saved.This is the advantage of selective law enforcement.In the judicial field, people do not sue the officials and ignore them. In addition to the active intervention of the public authorities in criminal cases, the law enforcement procedure is generally started only after the interested parties take the initiative to tell.In the production field, it is sampling inspection, and the overall quality is analyzed by inspecting the sample quality.It is more common in the administrative field, either taking the initiative to choose individual law enforcement, or passively finding out that the law enforcement is not the law enforcement after the occurrence.
Negative effects
Because there are always omissions in the time and space of selective law enforcement, some illegal phenomena may not be disposed of, and it is reasonable in the system not to abide by the law and not investigate the violations.This is the congenital focus of selective law enforcement, and it is easy to derive two problems: first, it provides operation space for law enforcement corruption, and law enforcers can use control of the law enforcement omission rate or choose whether to enforce the law to intimidate the jurisdiction object, so as to achieve the purpose of power rent-seeking.Second, with the gradual increase of law enforcement omissions, it is easy to have "broken windows". "If this window cannot be repaired in time, others may be prompted to break more windows.This poses a serious challenge to the equality, authority, justice and sacredness of the law, and seriously damages the legal order.Although China has strengthened administrative supervision in the fields of coal mine production and food safetySafety accidentIt still happens constantly. As far as administrative problems are concerned, selective law enforcement is an important defect.
"Today, when comprehensively promoting the rule of law, various complex and new social phenomena and many illegal acts are constantly challenging the blind area of the law. At the same time, due to the unpredictability and imbalance of many law enforcement events and the limited law enforcement resources, selective law enforcement by grass-roots civil servants in the process of law enforcement has become a last resort.However, with the gradual implementation of administration according to law and the improvement of market economy, its negative consequences gradually appear: the misconduct of law enforcement agents, the loss of legal authority, and the increase of law enforcement costs;The improvement of these negative consequences requires the cooperation and co governance of legislators, law enforcers, judicial workers and the public. "[1]
Remedies
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Because selective law enforcement always has the possibility of not abiding by laws and not investigating violations, it is difficult to maintain the legal order fundamentally.In order to consolidate and maintain the legal order, the common idea is to further improve the efficiency of selective law enforcement, make people dare not break the law, and reduce the number of violations. The main complementary methods are discretion, sports law enforcement, and severe punishment.
Discretion
The law enforcers can be more or less serious within the free scale given by the law according to the changing situation.Its advantage is to make law enforcement decisions conform to the public's psychological orientation, economic and social requirements, produce the necessary demonstration effect, and make up for the lack of law enforcement force.For example, in developed regions, economic punishment is relatively heavy, which can deter the wealthy groups;Leniency for confessions can encourage offenders to cooperate in detection and reduce law enforcement costs;It can establish the authority of law enforcers and reduce the resistance to law enforcement by giving more weight to those who cooperate in law enforcement and those who have bad attitudes.Its defect is that when the law enforcers deviate from the correct purpose of discretion, they can be more or less serious within the free scale given by law according to their own interest orientation, providing effective operating space and responsibility avoidance space for power rent-seeking.
Sports law enforcement
It is up to the law enforcers to choose the starting time and concentrate on fighting the war of annihilation in a short time.Its advantage is that law enforcers can carry out surprise attacks after full preparation.For violators, speculation can be eliminated to a certain extent due to the uncertain time of punishment.For example, the food special rectification activities launched when the food quality problem is serious, and the safety special rectification activities launched when the production safety situation is severe, these can mostly solve the outstanding problems to a certain extent and return to the normal production and living order.Its defect is that it is easy to replace the normal law enforcement, so that the omission rate of law enforcement in time and space can be further expanded, showing a loose or tight cycle, so that the inertia of law enforcement can be protected by the system.Those with illegal motives can hide from the wind and waves for a while, and then hide from the sea and sky.At the same time, it is difficult to effectively grasp the starting time, and it is easy to become an "afterthought". If power rent-seeking factors are involved, sports law enforcement is more likely to become a cat and mouse show game, losing the original role of law enforcement.
Focus on chaos control
The punishment for a certain situation in legislation shall be subject toheavy, fromstrict(Not the law enforcersDiscretionary PowerTo a certain extent, the public will be afraid of the law, consciously abide by it, and dare not go beyond the threshold.For example,feudal societyThe punishment of the crime of bullying the monarch, the punishment of treason at all times and in all over the world, and the punishment of drug trafficking and illegal use of guns in China are relatively strict, which also makes this situation relatively less.Its defect is that it does not conform to the trend of humanized rule of law. It can be cured for a while but cannot be cured for a lifetime. It is easy to intensify social rebellious feelings for a long time and cannot be released in a short period of time, which may eventually accumulate into major social problems.At the same time, while strengthening the fear of crime of the law enforcers, it is more likely to stimulate their desire to bribe law enforcers to seek escape.
Law enforcement defects
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Selective enforcement because itCongenitalThe focus and the defects of various countermeasures in the operation process, so it is more necessary to find more effective remedies.For the National People's Congress, as the legislature, the supervisory organ and the highest authority, it is just the responsibility that should be done.
1. Match law enforcement resources and reduce selective law enforcement.
It's not enough to follow the lawExecution is the life of law.Only when the law enforcement resources are matched, can the law be more strictly enforced, the phenomenon of non-compliance with laws and impunity be reduced, and the opportunity of power rent-seeking be reduced.To promote the rule of law, law enforcement, especially the matching of law enforcement resources, must be taken into account in legislation.However, in China's legal practice, the matching of law enforcement resources is generally controlled by personnel establishment departments at all levels rather than coordinated by legislative bodies, which objectively tends to keep law enforcement resources in an inadequate or inappropriate situation, affecting the effectiveness of law enforcement.With the advancement of the process of governing the country according to law, this responsibility should be more shouldered by the people's congresses at all levels who enjoy the legislative and supervisory powers. Only in this way can legislation and law enforcement be well connected, and the strategy of governing the country according to law can be effectively implemented.
2. Reduce discretion, standardize discretion, and narrow power rent-seeking space.
Legislators should try their best to refine the disposal provisions and reduce the scope of discretion when making legislation.The National People's Congress should withdraw part of the legislative power transferred to the government and departments, improve the law as far as possible within the system of the National People's Congress, and overcome the tendency of legislative departmentalization, empowerment, and discretion.For those who have to be treated differently due to unbalanced economic and social development, the provincial and municipal people's congresses can be given certain authority, and detailed provisions can be made according to the actual situation of the region.As far as the current legislative system is concerned, the city level has no legislative power (the larger city with legislative power is actually a sub provincial city), which needs further exploration.
3. Strengthen the supervision of law enforcement and prevent power rent-seeking in the process of law enforcement.
We should gradually separate the choice and enforcement power of law enforcement agencies, establish an efficient and transparent law enforcement command center, improve the randomness and balance of law enforcement, and weaken the ability of law enforcement power to seek rent.We should strengthen the ability of the NPC to investigate and deal with law enforcement violations, advocate that the NPC conduct post analysis of law enforcement cases, enhance the deterrent effect of NPC supervision, and curb the impulse of power rent-seeking.We should advocate that the NPC evaluate the effectiveness of the overall law enforcement, urge law enforcement agencies to be diligent in law enforcement, and increase the density of law enforcement in time and space.
4. Reduce the "broken window phenomenon" and reduce the demand for law enforcement.
When the phenomenon of broken windows is rare, it can reduce the pressure on law enforcement resources, so that the limited law enforcement resources can be applied to important "susceptible" parts, thus gradually realizing a virtuous circle of social governance.On the contrary, law enforcement will be tired of coping with the situation, and the law breaking will become increasingly common, thus creating a vicious circle.Of course, reducing the "broken window phenomenon" is a strategic choice. Technically, it also depends on other means, including discretion, sports law enforcement, and severe punishment.However, it must be grasped that when the governance reaches a certain level, the law enforcement should return to the normal state and reduce the "broken window phenomenon" by increasing the law enforcement density in time and space.It is always the focus of NPC supervision to urge and support law enforcers to increase law enforcement density in time and space.
take steps
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If we want to make up for the shortcomings of selective law enforcement by giving full play to the role of the People's Congress, we must fully understand the selectivity of the work of the People's Congress.The work of the National People's Congress has great selectivity in when to work, to whom, how to work, and how to deal with it. It also has the defect of selective law enforcement.At the same time, the power of the National People's Congress is the ultimate power in the legal system and has higher political responsibility, so it is more necessary to have a proactive attitude to overcome the defects of selective law enforcement.
Appropriate frequency
The limited regular working force of the Standing Committee of the National People's Congress determines that the exercise of power cannot be very frequent.Everything is covered all the time, and it is difficult to be effective.However, if the frequency is very low, and the problems in the work of "one government and two courts" are neglected frequently, the probability of being touched will be reduced, the risk cost of mistakes will be reduced, the sense of self-examination will be weakened, the awareness of "network leakage" will be aroused, and the deterrent role of the people's congress will be lost.At the same time, for the public, it is also easy to doubt the actual role of the Standing Committee, and even the occasional "heavy punch" may be considered as a show.Obviously, in order to enhance the public recognition of the work of the Standing Committee of the National People's Congress and the deterrence of power, there must be an appropriate frequency of work.
cliffide flower
When rigid measures have a coercive effect on specific objects, they also have a deterrent effect on other objects.If the work of the National People's Congress lacks rigidity, its voice will be ignored and valued, and the work will naturally have little effect.Therefore, for the work of the National People's Congress, when it is impossible to supervise everything, we have to follow the "code" to focus on the "key points". When necessary, we should take rigid measures to "set an example to others", so that other objects will have a strong sense of caution. "Don't wait to raise the whip and forge ahead" is obviously a necessary strategic choice.
Effective publicity
GoodpropagandaIt can effectively highlight the effect, expand the audience, and extend the time limit, not only let the masses get into the eyes and ears, the brain and the heart, but also let the relevant personnel make corrections if they have, encourage others if they have not, and follow the precepts when they hear, so as to maximize the deterrent effect.The standing committees of local people's congresses shall, in accordance with the requirements of the Supervision Law on the publicity of supervision, rely onmodern information technology And the media to strengthen work publicity from a quasi public perspective and strive to improve the credibility of power.
Accept supervision
We should further promote the sunshine exercise of power and fully accept the supervision of NPC deputies and the people.We should actively promote the system of representatives' reporting on their duties and accept the supervision and judgment of the people, especially the voters;We should constantly reform and improve the election system and cadre selection system, and gradually establish a direct election system for members of state organs, including members of the Standing Committee, so as to promote them to conscientiously abide by their professional ethics and improve their performance of dutiesabilityAnd improve the effectiveness of work.
Specific cases
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On April 23, 2009, the New Morning Post published an article titled "Peeping Girl Neighbors" and“Whoring and sleeping with young girls”Who is more serious.It is said that Li, who lives in Chengdu, secretly loves his neighbor Liu, sneaks into Liu's yard while his husband is away, and then climbs up a tree to spy on Liu's every move at home.The incident was sentenced to rape by the court.Li was peeping at adults, while several officials in Xishui County, Guizhou Province actually abused young girls, and there was solid evidence of the crime.However, the court only ruled that "whoring and sleeping with young girls".If Li, who has no official status, sexually assaulted those young girls, it may be the maximum sentence for rape;If several officials in Xishui peeped at the woman, the local court may not take care of it.Why is there such a big difference in the same criminal law?The author defines it as a kind of selective law enforcement.After reading it, I felt sorry and couldn't help asking: How many laws are still enforced selectively?
Yunnan, which has attracted worldwide attention“Hide and seek”The trial results of the people involved in the case have finally come out.Li Dongming, a police officer in the detention center, was sentenced to one year and six months' imprisonment and suspended for two years for dereliction of duty;Another police officer, Su Shaolu, was sentenced to one year for the crime of maltreating the supervised personnel.In the same case, the three detainees in the detention center who died due to intentional injury were sentenced to life imprisonment and fixed-term imprisonment of 17 and 16 years respectively.Because of the different circumstances of the crime, it should be normal to have different punishments for the same case. However, in this "hide and seek" case, there was such a huge difference between the officials and the people who were sentenced. No wonder the public opinion was fierce.Although professionals defending the local courts may say that the two are not comparable“Prison tyrant”It was Li Qiaoming who was killed directly. The police were just careless or abusive.But people with a little common sense know that when a group of suspected criminals are imprisoned in a space controlled by the police, the police have the responsibility to maintain order.
