On The Error In Cognition Of Illegality In Administrative Penalty

The issue of the error in cognition of illegality is an important topic in the field of subjective fault,and the core of the issue is whether the illegal situation with the error in cognition of illegality should not be punished or whether the punishment should be reduced or mitigated.In the field of administrative penalty,there was few theoretical discussions on this issue in the past,and in practice,the administrative organs either did not ask for subjective fault in administrative penalty,or did not respond directly or explicitly did not consider it.With the amendment of the Administrative Penalty Law,it is clear that it is not punishable without subjective fault.Therefore,it is necessary for the administrative authorities to change their previous position and take seriously such cognitive faults as wrong perception of illegality.This thesis focuses on three basic issues: what is error in cognition of illegality in administrative penality,why administrative penalty needs to consider the situation of an actor’s error in cognition of illegality,and how to deal with an actor’s error in cognition of illegality in administrative penalty.The error in cognition of illegality in administrative penalty refers to the situation where a violator objectively commits an administrative offence,but at the time of his or her conduct subjectively believes that his or her conduct does not violate the provisions of the administrative law and there is an error in cognition.Administrative penalties should break away from the old idea of "cognition of illegality makes no difference" from three perspectives:the combination of subjective and objective responsibility position that the new Administrative Penalty Law has taken,the lower accountability of "not knowing the law" under the policy attribute of administrative law,and the possibility of administrative organs causing errors in illegality.This paper adopts a three-tier,double subjective fault system of administrative penalty composition,and the relationship between error in cognition of illegality and intention & negligence is analysed,through which the feasibility of subsuming the interpretation of the content of cognition of illegality into the elements that can be included in the subjective fault clause is pointed out.Finally,drawing on the specific treatment mode of foreign countries and balancing fairness and efficiency,the solution of "limiting intentionalism" is chosen,claiming that the possibility of the knowledge of illegality is an element of subjective fault in the responsibility layer of administrative penalty,while the knowledge of illegality is a circumstance for the quantum of administrative penalty.Thus,an unavoidable error in cognition of illegality is the absence of subjective fault and should be exempted from administrative penalties in accordance with the second paragraph of article 33.Finally this paper explains the determination of no administrative penalties for error in cognition of illegality,i.e.the review of the determination of the "unavoidability" of the error.It explains the criteria and methods for determining "unavoidable" and the burden of proof on the violator party,as well as the special circumstances involving the administrative trust protection;on the other hand,it explores the direction of proof for the administration side to prevent the establishment of "unavoidable",and thus proposes the administrative subject to fundamentally solve the problem of the error in cognition of illegality.