The Exercise And Regulation Of The Discretionary Power Of Market Supervision And Administrative Penalties

With the accelerated innovation of economic models,the market environment is becoming more and more complex,and the requirements for the professionalism and timeliness of its supervision have been significantly improved,and the difficulty of market supervision and law enforcement has become more difficult,calling for a wider application of discretionary power;on the other hand,market-oriented legalization The continuous construction of an international business environment,the in-depth advancement of the rule of law in a country ruled by law,a government ruled by law and a society ruled by law,and the exercise of discretionary power w hen the market supervisory agency imposes administrative penalties are also more standardized.The national level "Plan for the Construction of the Rule of Law in China(2020-2025)" and the newly revised "Administrative Punishment Law" put forward higher requirements for the discretion of administrative punishments.While the regulations in related fields are becoming more and more perfect,the enforcement of punishments has exposed many problems,which have become problems that need to be solved urgently.Discretionary power in administrative punishment in the field of market supervision has the statutory nature of the subject,scope of application and legal basis,and stronger professional and technical nature.Its scope of application is limited to unified registration of market entities,unified anti-monopoly law enforcement,combating trademark and intellectual property infringements,investigating unlicensed operations,and monitoring product quality and safety.Its legal basis lies in the "Administrative Punishment Law" and the "Food Safety Law".The exercise of discretion is embodied in two levels of entity and procedure.The former includes the identification of the nature of the act,the identification of illegal circumstances,and the selection of the type and extent of the applicable penalty,while the latter lies in the selection of some procedures.But it still belongs to the area of administrative punishment,so it should also follow the principles of legal punishment,equivalent punishment,and due process.Empirical analysis based on typical cases is an important means to discover discretionary issues in this field.In the analysis of more than a thousand cases of administrative penalties for market supervision,it is found that the exercise of discretion in this field has the characteristics of a wide range of fields,a variety of applicable legal basis,and a large number of penalty factors.Through the specific analysis of the nature of the behavior,the determination of the illegal circumstances,the choice of the punishment range,the choice of the punishment procedure,etc.,it is found that the exercise of discretion in the administrative punishment of market supervision involves different punishments and restraints in the exercise of discretion,and the factors are not considered.Issues such as reasonableness and failure to apply discretionary standards.There are many reasons for these problems.First of all,there are problems such as narrow application scope,rigid scope,low restraint effectiveness,and regional conflicts in the discretionary benchmarks at the entity level;secondly,the use of comprehensive law enforcement platforms and big data technologies in law enforcement methods is insufficient.Sufficient;again,the restrictive functions of the procedures of hearing,explaining the reasons,and disclosing the punishment decision in the punishment process have not been fully utilized;finally,the institutional review and social supervision of the discretionary power are also slightly lacking.In order to solve the problems in the discretionary discretion of administrative penalties for market supervision,it is necessary to expand the scope of application of the discretionary benchmarks,set up a dynamic adjustment mechanism for the discretionary benchmarks,and uniformly formulate standards to complete the discretionary benchmarks for market supervision administrative punishments;by constructing law enforcement informatization Big data platform,the introduction of "Internet +" scientific law enforcement methods to enhance market supervision and law enforcement technology;the existing law enforcement procedures and systems must continue to be further optimized;follow-up review and supervision mechanisms and the establishment of a "three random and two open" social supervision model to strengthen Supervision and review of the discretionary power of administrative penalties for market supervision.