Research On The Application Of No Administrative Penalty

The four types of non punishment,namely "no punishment for lack of responsibility","slight non punishment","no punishment for the first time" and "no punishment for subjective fault",constitute the non administrative punishment system under the framework of the new administrative punishment law,which marks the progress of China’s administrative punishment system.In the past,"minor non punishment" as the principle of non administrative punishment has been guiding the practice of law enforcement for a long time.However,the strict provisions of the terms on the applicable conditions have resulted in the narrow scope of application,the uncertainty of the legal concept,the lack of operability,the one sidedness of the legal understanding of the law executors,the improper application of non punishment,and the strict control of the discretion of the administrative organs As a result,the clause of no administrative penalty has not played its due role in practice and is basically in a "dormant state".Excessive and improper punishment not only damages the legitimate rights and interests of the opposite party,violates the original intention of administrative punishment,but also damages the credibility of the government and reduces administrative efficiency.On the practical level,the contradiction between the urgent need for the system of no punishment and the insufficient operation of the system has stimulated the exploration of innovative measures of no administrative punishment,such as the list of exemption from punishment,informal means of law enforcement,and "no punishment for the first time" which has become a legal provision.The amendment of the administrative punishment law absorbs the system of "no penalty for the first time" explored by the local government,responds to the dispute on the principle of "subjective imputation" in theory and practice,and greatly expands the application space of no administrative punishment in the future.The main purpose of this paper is to standardize the application of no administrative penalty after activation by classification.Based on the perspective of the people’s court,through the retrieval and carding of relevant cases in the judicial document network,this paper summarizes that the determination of "minor illegal act" in administrative practice is mainly analyzed from the qualitative and quantitative aspects."Quantitative" in specific cases shows that the duration of illegal acts,the size of illegal amount,the number of illegal times and other quantifiable elements,but there is no specific quantitative standard in practice,which is generally determined by comparing the scope of specific cases."Qualitative" needs to be determined in combination with the legislative purpose of the administrative law of the department involved in the specific case.For the behavior of "harm is identified in time",and the evaluation of "harm needs to be corrected in time".The identification of "no harmful consequences" needs to be combined with the legislative purpose,in addition to the material losses,but also pay attention to the damage to the social order maintained by the law.There is no clear distinction between the three elements,which need to be considered in combination with the facts of the case.For the application of "no penalty for the first time",this paper affirms the institutional progress brought by "no penalty for the first time".By combing the list of "no penalty for the first time" published in various fields,this paper summarizes the problems of different standards,confusion of concepts and generalization of application fields of "no penalty for the first time".In order to ensure the standardization of the list,it is suggested to establish an independent national list in various fields to clarify the application boundary of the list.However,due to the fact that it is in the stage of system development and the time is not yet ripe,as a transitional measure,we should issue national guiding rules as soon as possible to refine and standardize the relevant applicable rules of initial non penalty.We should unify the concept of "first time",not only limit the types of "punishment" to fines,but also exclude the types of punishment for serious violations such as restricting personal freedom and Revoking Business License,and lock in the types of punishment for legal provisions matching "non penalty items".The scope of application is defined by a combination of positive and negative enumeration,and "no penalty for the first time" can be applied in traffic law enforcement,industrial and commercial registration management,advertising,price supervision,transportation and other fields.However,in areas with prevention as the main purpose(e.g.ecological environment)and areas directly related to citizens’ life and health(e.g.food and drug supervision,medical and health),it is generally not applicable to "no penalty for the first time",and the scope of "no penalty for the first time" can only be limited to the scope of minor violations that will not affect the environment and life and health ”In order to alleviate the tension caused by the non punishment of illegal acts,we should improve the supporting "record system of initial non punishment","order to correct system" or "Notification commitment system".As for "no penalty for subjective fault",the introduction of subjective fault in the amendment of administrative penalty law is a great progress of administrative penalty system.For the judgment of subjective fault,the administrative organ should bear the general duty of care for the subjective fault of the offender,and the actor has the right to prove that he does not have subjective fault.The judgment of the administrative organ on the subjective fault should be combined with the result orientation of the behavior to deduce the subjective fault.The relative person’s proof needs to prove that he has fulfilled the necessary duty of care under the rule of experience.The arrival of risk society leads to the change of the function of administrative punishment from sanction to sanction and prevention.The functions of the government have also changed from a "regulatory government" to a "service-oriented government".Taking into account the protection of human rights and the realization of administrative objectives has become the due meaning of administrative punishment in the new era.The modification of the system of no administrative punishment is just a response to the needs of the times.The system of no administrative punishment will have a broader application space in the future.