Study On Article 33 Paragraph 2 Of The Administrative Penalty

The newly revised Law of Administrative Penalty(2021)writes the subjective fault into paragraph 2 of Article 33 for the first time,and adopts the presumption of fault.The law states as " Where a party has sufficient evidence to prove that there is no subjective fault,administrative penalty shall be exempted,except as otherwise prescribed by laws and administrative regulations." This article mainly studies the subjective fault and the presumption of fault in this clause.Chapter I analyzes article 33,paragraph 2 from the perspective of the theory of administrative penalty.Firstly,the writer discusses the legal nature of subjective fault,points out it as the liability condition of administrative penalty.On the one hand,deliberation as an element of fault,advocates the classification of criminal law.At the same time,the illegal understanding related to intention should be associated with intentional responsible elements.On the other hand,negligence is appropriate to adopt the classification of criminal law,and define the negligence by the violation of the duty of care,and the degree of attention should determine the compromise of the ability standard of the general person and the actor.Secondly,the presumption of fault requires the actor to bear the burden of proof without subjective fault.For the degree of proof that the burden of proof is sufficient to prove,the underlying facts and the fact setting contrary to the constructive fact should be distinguished.In the proof of no subjective fault,through the performance of administrative obligations,no expected possibility,trust protection to achieve the proof.Finally,if the aforementioned certificate is completed,the legal effect of no administrative penalty,which is different from exemption from punishment and subject to administrative constraints.Chapter II discusses the applicability of the principle of presumption of fault of article 33,paragraph 2.On the one hand,the presumption of fault,applied as the principle in the sense of the general law of the Administrative Penalty Law,does not distinguish the applicable object and improperly increases the burden of proof on the public law,which is not inconsistent with the principle of proportion and violates the purpose of human rights protection,and will have doubts about constitutionality.On the other hand,the principle of presumption of fault is also faced with legitimacy,which goes beyond the boundary of the principle of innocence allows the application of presumption,and the administrative authority should not be the object of constructive fault tilt protection.In addition,the conflict of the principle of presumption of fault and the administrative legality burden of proof is borne by the administrative authority,which transcends the boundary of the actor’s cooperation obligation and will lead to improper bearing of the interests of the actor when the objective evidence is impossible.The third chapter proposes the way to optimize the previous doubts.First of all,the best way should be to clarify the principle of responsibility through legislation,apply the same responsibility principle as the criminal law,and add the responsibility conditions of the organization.Secondly,the authorization clause should be strictly applied to the non-fault principle and other provisions.Indeed,if it is necessary to apply the presumption of fault,the claim is only applied to money penalty except the relatively large amount and behavioral offense,while lowering the standard of proof to clarity.In addition,the administrative authority makes the temporary administrative penalty decision or assumes the fault by invoking the rules of thumb,which is the choice to replace the presumption of fault.