The Application Of The Fault Presumption Principle In Administrative Punishment

As a eye-catching highlight,Article 33 of the new Administrative Punishment Law firstly absorb the subjective fault.The revised law actively responds to the call of subjective imputation principle in the field of administrative penalty,improves the imputation system of administrative penalty in China,and is an in-depth interpretation of the good governance concept of "controlling power and protecting the people".It is worth noting that the subjective fault clause of the new law adheres to the principle of "presumption of fault",that is,the burden of proving the absence of subjective fault is borne by the administrative counterpart himself.Presumption of fault principle,as a tool of legal liability resolution from the civil field,lacks rich and mature application experience in the field of administrative penalty in our country,and has a series of realistic problems,including the shortage of supply of relevant legal norm basis,burden of proof inversion mode may cause the imbalance of justice,blind presumption or lead to the neglect of administrative penalty education function.The application of the principle of presumption of fault in administrative penalty cannot be separated from the basic framework of administrative legal system in our country.Therefore,it is necessary to build it into an effective applicable legal liability resolution tool in the field of administrative penalty through the improvement of "tailored to suit",so as to better play the original intention of revising the Law of Administrative Penalties to reflect the principle of respecting and protecting human rights and improving the efficiency of administrative law enforcement.The basic principles of administrative law and administrative punishment law have guiding significance for the application of the principle of presumption of fault,and can provide effective solutions to practical problems.The application of the principle of presumption of fault needs to grasp the principle of administration according to law,the principle of due process and the principle of combining punishment with education.First of all,administrative requirements according to law ensure that the application of the principle of presumption of fault has law to rely on,so the subjective fault clause newly added to the Administrative Penalty Law should be equipped with comprehensive and detailed applicable norms.On the one hand,the definition of the connotation of "subjective fault" mentioned in this paragraph needs to be clarified.It can be allowed to not distinguish between intention and fault at the general level of administrative penalty,and only punish intention at the legal level,so that the application of subjective fault clause can be relatively modest,and administrative efficiency can be taken into account while respecting and protecting human rights.On the other hand,the integration of subjective fault clause into the administrative legal norm system needs to do a good job of connection,properly deal with the relationship between general law and special law,higher law and lower law,and pay attention to avoid the copying or copying of legal norm provisions.It can be allowed to use the legislative purpose interpretation,and embody "subjective fault" according to the performance degree of the relative party’s reasonable duty of care,so as to make the principle of fault presumption more practical in the practice of administrative punishment.Secondly,due procedure requires that the operation procedure of presumption of fault principle is reasonable,especially the problem of the disparity of the evidential ability of both parties under the mode of inversion of burden of proof should be paid attention to.Therefore,the administrative penalty procedure can be optimized to make up for the imbalance of the evidential ability of both parties and ensure the fairness of the application procedure of presumption of fault principle.Since the operation of administrative penalty procedure is naturally beneficial to the public power,the administrative organs need to consciously bear some obligations of "tying themselves in cocoons".First,in the process of notification,the administrative organ should fully explain to the counterpart his right to provide evidence,and ensure the standardization of the standard of form and content of the explanation;Second,in the process of proof,the administrative organ should reasonably assist the other party to provide evidence,including the most basic negative assistance obligation,that is,not to hinder the other party from obtaining evidence legally,and the advanced positive assistance obligation,such as providing necessary administrative guidance for the other party;Third,in the review process,the administrative organ needs to give timely feedback on the review of evidence,allowing the counterpart to supplement valid evidence in time.Therefore,it is necessary to ensure that the feedback of administrative organs is active and timely,the feedback content is removed from the false and retains the true,and the feedback supervision mechanism is constantly improved.Fourth,after the administrative organ makes the decision not to punish,it should eliminate the adverse impact of the administrative penalty procedure on the other party,especially the potential extra-legal negative impact,so as to guarantee the normal production and life of the other party.Finally,the combination of punishment and education requires that administrative punishment should not ignore the educational purpose,especially to avoid the blind presumption of subjective fault of the other party in the process of law enforcement by administrative organs,which will lead to the weakening of the educational function of administrative punishment by the punishment function,which is not conducive to the regulation of illegal behavior and guide the wrongdoer to correct.Therefore,the administrative organ should start the proof procedure of inversion of burden of proof after exhausting the legal path to exclude the administrative liability of the other party,so as to ensure that the application of the principle of presumption of fault conforms to legal principles and takes into account rationality.On the one hand,it is necessary to clarify the order of application of the principle of presumption of fault and reverse the possible thinking of law enforcement personnel.