Research On The Legal Issues Of The Application Of The Discretion Benchmark Of Administrative Punishment In Pharmaceutical Industry

The legal compliance of research and development,production,circulation,management,and use of drugs is the top priority of medical and health undertakings.However,in recent years,drug production and sales,and other links of illegal phenomena emerge in an endless series,the law gives administrative law enforcement agencies the power to formulate the discretion benchmark,to make up for the law can not be fair and equal in the constitutive elements and punishment results for all cases of the situation.Based on the discretion standard,the administrative organ can measure the legal interest according to the case’s specific circumstances to meet the requirements of the justice of the case.The supervision and control of the drug industry require extremely professional law enforcement judgment.Considering the important role of the drug industry in people’s health and social stability,the formulation and application of the administrative penalty discretion benchmark should refer to the original intention of the law granting discretion and reflect the respect and summary of the social administrative law enforcement practice.The practice of administrative discretion in China has the characteristics of "practice precedes theory" and "bottom-up".In 2004,Jinhua City of Zhejiang Province took the lead and launched the administrative penalty discretion benchmark system.At that time,theoretical research on this issue in China’s administrative law had not been carried out.Also,there were no normative documents from the central level that provided any guidance.At present,the theoretical research on the discretion benchmark has been relatively perfect,including the research on the classification of the administrative penalty discretion benchmark in different fields.However,the research on the administrative penalty discretion benchmark in the pharmaceutical industry is still rare,and the articles that combine practice to analyze the discretion benchmark are mostly based on the analysis of a few published judicial judgments.There are few kinds of literature to study the discretion benchmark according to the administrative penalty decision.In terms of research methods,this paper adopts the big data research method.20,517 drug administrative penalty written decision samples published by all provinces and cities across China from 2010 to 2020,which were collected in the legal information database of Wolters Kluwer,were taken as the analysis object.This paper used a machine learning word segmentation module to summarize and statistic all data text fields.The analysis of the time and territory in a two-dimensional sample completes the whole change trend.According to the preliminary analysis of punishment and the applicable conditions of discretion benchmark and its difference inapplicable,two obvious legal problems in the application of the discretionary benchmark in the cases of administrative punishment in the drug industry are introduced,that is,the low application rate of the discretionary benchmark and the issue of the discretionary benchmark’s escape.Because of the uncertainty of its effectiveness,there are two obvious problems in the field of the compliance of the discretionary benchmark: the first one is the phenomenon of different application scales.On the one hand,the scale of application of the discretionary benchmark is different when the same administrative organ in the face of the different administrative relative;On the other hand,different law enforcement agencies will also cause the difference in the application rate of the discretionary benchmark.The second one is the low explanation rate after the application of the discretionary benchmark.Due to the lack of a normative exemption clause,the replacement of old and new laws will enhance the need for flexible application of the discretion benchmark.In law enforcement practice,based on the consideration of the cheapness of law enforcement,some law enforcers take the direct escape of the discretion benchmark to give lighter punishment to the parties concerned.Based on these two problems,this paper puts forward the standard drug administrative penalty discretion benchmark comply with applicable proposals,at the same time hope that through constructing restrictive exemption clause to guarantee the maximum application of the discretion benchmark,to strengthen drug management,guiding drug daily administrative punishment,and offer reference to maintain harmonious and stable development of the medical market.