Study On The Risk Of Applying Rapid And Aggravated Punishment

Article 49 of China’s Administrative Penalties Law provides that "in the event of a major infectious disease epidemic or other emergency,in order to control,mitigate and eliminate the social harm caused by the emergency,the administrative organ shall impose rapid and severe penalties on violations of the emergency response measures in accordance with the law",which is the logical starting point for this article to study the risk of applying rapid and severe penalties.This article provides guidance on the application of rapid and severe punishment in emergency situations in the sense of legal norms.However,a reading of the article reveals that,due to the roughness of its legislation,the uncertain concepts of rapid and aggravated punishment leave a large room for discretion for the administrative authorities,which greatly increases the risk of abuse of the administrative penalty power.In fact,in order to reduce the deviation between its institutional design and its practical effect,it is necessary to understand and explain it at a deeper level.Therefore,this paper aims to clarify the basic theory of the normative text,affirm its value function while disguising the potential application risk of rapid reassignment,and ultimately improve and optimise it to enhance the effectiveness of the emergency handling of administrative punishment.The paper is divided into four main parts as follows:The first part of the article is devoted to clarifying the meaning and content of the law relating to expedited and aggravated penalties.While there are differences in the application of fast and heavy penalties,there are also positive commonalities in terms of administrative efficiency.There is also considerable scope for interpretation in terms of the limitations of the legal basis,the prerequisites for application,the circumstances of application and the procedures for application.The second part is an analysis of the value pursuit and basic principles of rapid and aggravated punishment.In addition to its emergency response function in controlling the consequences of expansive harm in a timely manner,rapid and aggravated punishment also seeks to optimise the allocation of law enforcement resources and maintain a minimum of justice.In order to fully realise its value pursuit in terms of legislative purpose,the legal control of its application should also be strengthened through the principles of statute,administrative contingency,proportionality and protection of the opposite party.The third part is a review of the legislation on rapid and aggravated penalties,from which the following problems are found under the "rough legislation" model: the legal criteria for the distinction between significant and non-significant in the scope of application are unclear,the scope of emergency response measures is unclear,there is a risk of legitimacy in the time limit and manner of application,the type and range of aggravated penalties and the corresponding discretionary benchmarks are missing.In order to promote its standardized operation under the rule of law,there is an urgent need to formulate perfect rules for administrative emergency penalties.In the fourth part,the author will improve the scope of application,application procedures and the benchmarks for the imposition of severe penalties.The scope of application is to clarify the criteria for determining major and non-major penalties and to complete the scope of emergency response measures;the application procedures are to limit the minimum compression of the time limit for handling cases,to establish additional channels for the exchange of opinions and to strengthen post-event random inspection and supervision,etc.to strengthen the legitimacy of the procedures;and finally,to clarify the limits of the implementation of severe penalties through the formulation of specific discretionary benchmarks.