The Social Harmfulness Of Administrative Violations In The First Violation Without Punishment

The Administrative Punishment Law,revised in 2021,adds a new provision on the system of not punishing the first violation in the first paragraph of Article 33,"If the first violation of the law is minor and the harmful consequences are minor and promptly corrected,administrative punishment may not be given." However,from the perspective of the theoretical logic of entering and exiting penalties,the legal basis for not punishing the first violation is not clear;Accordingly,it is not clear what rules should be followed to limit the discretion of punishment in the first violation.Whether the provisions on first violation without punishment are based on social harmfulness,what is the positioning of social harmfulness in the theoretical logic of administrative punishment,what are the defects of the first violation without punishment rule from the perspective of social harmfulness,and how such rules should be constructed are urgent issues that need to be solved in the academic community.Therefore,this paper takes the social harmfulness of illegal acts in the first violation without punishment as the research object.This article aims to solve the problem of social harmfulness,as the legal basis of the first violation without punishment,what is its position in the logic of entering and exiting penalties for punished behavior? How should the relevant rules of non-punishment be set with the assessment of social harmfulness as the core?Besides the introduction and conclusion,the article includes four chapters.Chapter 1 introduces the general outline of the provisions on non-punishment for the first violation and the concept of social harmfulness,and clarifies that social harmfulness is the legal basis for the first violation without punishment.In administrative punishments,social harmfulness is the core judgment standard for illegal conduct,including danger and risk to be prevented,objective harm results and subjective malignancy.From the perspective of the theory of administrative punishment and the practical application of the three elements of non-punishment for the first violation,the non-punishment for the first violation takes social harmfulness as the core legal basis and foothold.Chapter 2 discusses the status and role of social harmfulness in the logic of punishment and punishment.It is necessary to distinguish the three concepts of "administrative illegal acts","punishable acts" and "actual punished acts",and follow the logic of punishment for punished acts in a progressive manner.Social harmfulness is a factor in the concept of actual punishable conduct,which affects the necessity of punishment and does not affect the establishment of punishable conduct.In the entry and exit of punishment for punished conduct,the assessment of social harmfulness shall adopt the application mode of formal and substantive punishment.Chapter 3 sorts out the normative texts and judicial practice of impunity for the first violation,and introduces the shortcomings of the evaluation of social harmfulness in the practice of not punishing the first violation.First of all,the positioning of social harmfulness in the logic of punished behavior is vague,and most texts avoid mentioning the order and functional positioning of social harmfulness in the first violation without punishment,and there are also misunderstandings in judicial practice.Second,the scope of application of the first violation without punishment is not strictly based on social harmfulness.There is a lack of restrictive provisions on the areas to which the first violation is not punished,nor does it separately stipulate the specific application situations in the focus areas,and the conditions for application in some focus areas are too lenient.Third,the detailed elements of social harmfulness in the first violation of the non-punishment clause are simple and single,and some detailed elements are set up to deviate from the assessment of social harmfulness.Fourth,the provisions on discretionary legal effects are not centered on social harmfulness,and some texts voluntarily waive the discretionary power of legal effects.Chapter 4 preliminarily puts forward the construction of rules for the assessment of social harmfulness in the first violation without punishment.First of all,it should be clearly stipulated that the evaluation of social harmfulness should be carried out in the case of the first violation without punishment,and social harmfulness is a factor in the concept of actual punished behavior,and substantive consideration should only be given when imposing a penalty.Secondly,we should first distinguish key and non-key areas according to the seriousness of the damaged legal interests.Then,the type of punishment,the amount of punishment,and the statute of limitations for prosecution are used to determine the types of violations that are less harmful to society.Non-key areas adopt the method of reverse exclusion,and key areas adopt the method of positive listing to stipulate the types of violations for which the first violation is not punished.Third,the three elements of non-punishment for the first violation should be uniformly interpreted with social harmfulness as the center.Fourth,for the discretionary power of legal effect,it is not appropriate for the lower law to stipulate that "no penalty shall be given",and a checklist-type discretionary benchmark may be formulated to appropriately shrink the discretionary power of legal effect.