중국경찰 행정 자유재량권 연구- 총기사용 자유재량 중심 -

As restricted in the function describing security environment and maintaining, The role and power of police were about to remain in certain parts in the past, But the modern security environment that receives various changeable factors is likely to surpass the manual and guideline which could be mechanically applied. That’s why we cannot help but to supply local officers who deal with real security problems with right to execute law-related actions that are based on rational experience and conscience, and we call this police authority as the police discretion. The police enjoy privileges over the security environment that various security factors can activate in the certain range, With this privileges the police aim to coordinate the result of law enforcement that used to be static and uniform, and at the same time they pursue to elevate the problem-solving ability and not only try to punish the offenders but also educate them. Therefore, the police can protect the members of society and maintain the security environment and pursue to prevent the recurrence of offenders. As pointed out by the social media and members, the problems of the police discretion that was isolated from the supervision of the other department and people for a long time, and the infringement of liberty and violation of human rights accumulated by the abused discretion, The study related to violation of human rights that involved with the police action started to surge. As they emphasized the principle of constitutional government and due process, citizens started to ask for more severe justice and fairness to law enforcement, especially to the police. They emphasized the needs of regulation of the police discretion that was widely recognized by the scholar and man of affairs as necessity for changeable security environment and widespread problem, at the same time they stressed the importance of inner control system and outer control system by checks and balances. For achieving the goal of the security administration, the level of punishment must be decided through some discretion that is flexible, But chinese police that were taken by the arbitrary and biased judgments abused the discretion and gave some offenders light warning but tried to give severe punishment to others like penitentiary education and re-education through labor which could detain offenders of the administration code for up to 2 years, and then the problem of “the same violation but different penalty” occurred and people started to notice the severeness of misuse of police discretion. The police discretion is the original authority of the police that was given by the law for achieving the goal of the maintenance of the security, and widely used by police organization and police. As the purpose of the setting police discretion is to let police organization and police carry out the fairness based on law and conscience, therefore police could carry out the maintenance of the social security order and protection of the legal interest of the citizens. While the range of the selection could make them react to the changeable security needs elastically, If the judgement of the holders of the discretion is involved discriminately, there does exist the possibility that it could change into the severe social problem which could arouse the violation of the human rights and unfairness.