Research On The Application Of "First Offender Exemption"

The administrative punishment law revised in 2021 added the provision of "no punishment for the first violation",that is,the first violation with minor harmful consequences and timely correction can be exempted from administrative punishment.In fact,before the amendment of the law,there were relevant provisions in the administrative punishment law on no administrative punishment.As an administrative punishment system associated with "people-oriented law enforcement",no punishment for first violation plays a positive role in optimizing the business environment and reducing the cost of administrative law enforcement,In order to promote the implementation of the policy of no penalty for first violation and clarify the operation methods,in 2020,the State Council issued the notice of the State Council on doing a good job in the replication and promotion of the experience of the Sixth Batch of reform pilot projects in the pilot free trade zone,requiring the administrative organs of all provinces and cities to implement the list model of no penalty for first violation.However,in practice,the administrative law enforcement subjects seldom use the no penalty clause for two main reasons,First,the list of exemption from punishment has many types and the content is slightly chaotic;Second,the applicable conditions of no punishment for the first violation are not clear,so law enforcement officers dare not easily use this clause in practice,and there are often some phenomena of “not caring after punishment”.Based on this,this paper will start from the practical situation to study some problems arising from the application of "no punishment for first violation".The text of this paper is divided into four chapters.The first part first distinguishes the concept of "no punishment" from "no punishment" for the first violation,and makes it clear that "no punishment" in "no punishment for the first violation" should be understood as "no administrative punishment".Once again,it traces the historical evolution of the system of "no punishment for the first violation",which can be roughly divided into three periods,namely,the period of ordering rectification,the period of preliminary exploration and the period of establishing legitimacy.Finally,it analyzes the significance of the implementation of the system of "no punishment for the first violation".The second part simply combs the list of exemption from punishment related to the first violation from the aspects of formulating objectives,formulating basis,issuing forms and exemption behaviors.The following points can be seen through combing.First,in terms of formulation basis,there are many kinds of exemption lists in various regions,and the levels are chaotic;Second,in terms of the issuing body,the level of the formulation body of the exemption list is low.The third part,starting from the substance of the list of exemption from punishment,discusses some problems arising from the implementation of the system of no punishment for first violation in combination with relevant case studies.First,the standards of exemption behavior stipulated in the exemption list are unclear.In particular,after the revision of the administrative punishment law,the condition of "first violation" has been added to the original provisions of no punishment.For the concept of "first violation",there are differences in both the exemption list and the identification in practice,which is not conducive to the unification of the legal system and affects the legal authority;Second,there is a lack of Procedural Regulation of "no punishment for the first violation",and few exemption lists stipulate that the law enforcement subject should apply summary procedure or ordinary procedure when making a decision not to punish;Thirdly,some exemption lists stipulate that the violator should be given a heavier punishment if he commits a second offence after "exemption from punishment for the first offence",and whether this mode of heavier punishment is legitimate is still controversial.Based on this,it is necessary to improve the system.Combined with the current legislative status and the specific problems in practice,we can consider to improve the system of no punishment for first violation from both substantive and procedural aspects.In terms of entity,firstly,the discretion rule of "no penalty for first violation" should be detailed,specifically,the meaning of "first violation","slight harmful consequence" and "timely correction" should be defined;Secondly,the list of exemption from punishment at the ministerial level in various fields should be formulated to limit the repeated formulation of relevant documents by administrative organs at or below the county level.Thirdly,a dynamic adjustment mechanism should be established to adjust the list in time according to the market conditions and legal procedures;In terms of procedures,first of all,we should standardize the law enforcement process without administrative punishment,focusing on simplifying the punishment procedures according to different situations;Thirdly,the filing and review system of the exemption list should be established to conduct substantive and formal review of relevant documents;Finally,we should strictly enforce the law enforcement actions of administrative organs to make punishment decisions,ensure the parties’ right to know,and establish an administrative withdrawal system.