Keywords: administrative punishment; The intensity of administrative punishment; Effectiveness of administrative punishment
According to the Administrative Punishment Law, administrative punishment means: "If a citizen, legal person or other organization violates the administrative order and should be given administrative punishment according to this law, it shall be prescribed by laws, regulations or rules and implemented by administrative organs according to the procedures prescribed by this law." It is generally believed that citizens, legal persons or other organizations who violate the administrative order and do not constitute a crime should bear administrative legal responsibilities according to law and be given administrative punishment by administrative organs.
China's Administrative Punishment Law came into effect in June 1 996+1October1. At present, the types of administrative punishment stipulated in the Administrative Punishment Law mainly include: warning; Fines; Confiscation of illegal income and property; Order to suspend production or business, suspend or revoke the license, and suspend or revoke the license; Administrative detention; Other administrative penalties prescribed by laws and administrative regulations.
First, the necessity of improving the effectiveness of administrative punishment
It takes time to perfect the law. After the founding of People's Republic of China (PRC), many administrative regulations were promulgated, many of which involved administrative punishment. These laws and regulations have been tested by practice. With the implementation of the reform and opening-up policy, great changes have taken place in society, the economic growth rate has increased year by year, and the income of individuals and various enterprises has also increased with the economic growth. The original departmental law does not adapt to the changes in the environment in terms of punishment. Therefore, it is very important to improve the effectiveness of administrative punishment.
(A) improving the effectiveness of administrative punishment is conducive to more effectively safeguarding public interests and social order.
The fundamental purpose of the administrative punishment law is to safeguard public interests and social order. However, with the development of economy, new social problems and contradictions are constantly emerging, and the corresponding laws and regulations should be adjusted accordingly, and the punishment should be greater, so that new social problems such as "black Internet cafes" will not be repeated, and public interests and social order can be effectively maintained.
(2) Improving the effectiveness of administrative punishment is conducive to more effectively protecting the legitimate rights and interests of citizens, legal persons and other organizations.
One of the purposes of administrative punishment is to effectively safeguard the legitimate rights and interests of citizens, legal persons and other organizations. However, the existing administrative punishment is not strong enough, which makes many lawless people harm the rights and interests of other citizens for their own economic interests and other interests. If we do not increase the intensity of administrative punishment and severely crack down on all kinds of administrative violations, the legitimate rights and interests of citizens, legal persons and other organizations will be more seriously violated. Only by improving the effectiveness of administrative punishment can we completely eliminate "black clinics" and "black processing sites", protect a fair market competition environment and effectively protect the legitimate rights and interests of citizens, legal persons and other organizations.
(three) improve the effectiveness of administrative punishment, is conducive to the supervision and protection of administrative organs to exercise their functions and powers according to law.
Because the effectiveness of administrative punishment is not high and the punishment system is not perfect, the number of administrative litigation cases is increasing year by year. Because the financial system and legislation are not matched, the administrative organs have different ways to deal with confiscation, which opens the door for illegally intercepting, subsidizing and luring the other party to illegally obtain financial resources. Therefore, we must increase the intensity of administrative punishment, ensure that administrative organs exercise their functions and powers according to law, and ensure the completion of administrative tasks.
(4) Improving the effectiveness of administrative punishment is conducive to giving full play to government functions.
Modern government has four functions: economic regulation, market supervision, public management and social services. If the government wants to give full play to the four functions and protect people's interests to a greater extent, it should improve the effectiveness of administrative punishment, crack down on all kinds of administrative violations, and ensure the stability of people's lives and a good social environment.
Second, the current problems of administrative punishment
Since the formal implementation of China's administrative punishment law, it has played a great role in cracking down on administrative violations, protecting the legitimate rights and interests of citizens, legal persons and other organizations, and safeguarding the interests of the public. However, administrative punishment involves many fields, such as taxation, industry and commerce, health and epidemic prevention, transportation and so on. Each department has different administrative regulations, and there are still many problems in specific operation.
(A) the intensity of administrative punishment is not enough
The effectiveness of administrative punishment is low, and it can't produce enough deterrence, which makes the criminals crack down endlessly. For example, there is a big gap between the illegally obtained profits and the punishment received by law enforcement officers, so in this case, the offenders will choose to take risks. Although many of them have been punished, the relatively weak punishment makes the illegal phenomena in DUZH emerge one after another. The punishment is relatively weak, as can be seen from the punishment standards for common problems in the following tables:
These laws and regulations, such as the Environmental Protection Law, came into effect from 1989. Although other laws and regulations have been revised, they cannot fully guarantee to keep pace with the times. Therefore, according to the current actual situation, we must improve the effectiveness of administrative punishment in view of practical problems.
(B) the actual level of administrative punishment is not high.
This aspect mainly refers to the low practical level of administrative punishment procedures implemented by administrative organs and their law enforcement personnel, and the irregular administrative law enforcement behavior. Mainly reflected in the low quality of law enforcement personnel, the professional quality of law enforcement personnel is far from the actual requirements: First, some law enforcement personnel are not well educated, especially those in grass-roots law enforcement agencies. Among them, only a few people have college education or above, and even fewer people have graduated from law; Second, the knowledge structure of the law enforcement team is unreasonable. In the process of establishing a socialist market economy, a large number of economic disputes have emerged, which requires law enforcement personnel to understand not only the law, but also the economy and foreign languages. However, few people really understand law, economy and foreign languages, and even fewer people have both; Third, with the development of economy, the progress of science and technology, the frequent economic exchanges and the increasingly complex social and economic relations, the means of illegal crimes are more advanced and secret, which requires law enforcement personnel to have excellent professional ability. However, there is still a considerable gap in the professional skills of law enforcement personnel. It makes some law enforcement officers covet pleasure, accept bribes, escape legal sanctions for some offenders, become prisoners of money and human feelings, abuse their powers and pervert the law.
In addition, some law enforcement officers make decisions without the approval of the corresponding leaders, or make major penalties without collective discussion, or draw conclusions prematurely after investigating the parties, or some people violate the law and discipline and abuse power for personal gain, which seriously affect the effectiveness of administrative punishment.
In addition to the factors of law enforcement personnel themselves, the limitations of law enforcement conditions also limit the effectiveness of administrative punishment. Some law enforcement agencies have insufficient law enforcement personnel, making it difficult to complete the increasingly heavy law enforcement tasks, and the phenomenon of employing non-civil servants to enforce the law is everywhere; Some law enforcement agencies are short of funds, and the funds for handling cases are not guaranteed, making it difficult to handle cases in time; Some law enforcement agencies have backward office conditions and do not use advanced equipment to handle business, which makes it difficult to meet the requirements of handling cases. These are not conducive to improving the efficiency of law enforcement.
(3) The responsibilities, rights and benefits of administrative punishment are not clear.
The Administrative Punishment Law stipulates that the subject of administrative punishment is the administrative organ with the power of administrative punishment and the organization authorized or entrusted according to law. However, the current Administrative Punishment Law has not fundamentally changed the chaotic status quo of the existing penalty-executing organs. Some institutions have obtained the power of penalty execution in disguise through the entrustment of regulations. These penalty enforcement agencies are numerous and complicated, and there are problems of overlapping or law enforcement loopholes in the process of penalty enforcement. According to statistics, about 80% of China's laws, 90% of local regulations and almost all administrative regulations and rules have set the power of administrative punishment, resulting in a large number of penalty-executing departments, including public security, customs, industry and commerce, taxation, health, quality and technical supervision, tobacco, medicine, salt industry, agriculture, forestry administration, transportation, road administration, fishery administration, maritime affairs, education and civil affairs. Due to the complexity of the penalty team, overlapping functions are inevitable. For some illegal acts, due to the high risk and low benefit of law enforcement, the enforcement department is punished for buck passing and kicking the ball; For some illegal acts with high gold content, the executive departments shall be punished for competing for power and profit and competing for punishment. At the same time, because there are too many penalty enforcement departments and the number of law enforcement personnel in some departments is insufficient, the penalty enforcement activities rely on surprise penalty enforcement and joint law enforcement to complete law enforcement tasks, which seriously affects the law enforcement effect.
Third, measures to improve the effectiveness of administrative punishment
(A) improve the standard of punishment
The formulation of each law and regulation has gone through a certain process, which is in line with the economic situation and social environment at that time in a certain period. We have realized that the social environment is changing very fast, especially in China, where the economic growth rate has been maintained at a high level. Relevant laws and regulations should be constantly adjusted and improved with the emerging new problems in society. As far as administrative punishment is concerned, some departments are still using the provisions of decades ago. These regulations are difficult to achieve the ideal punishment effect on practical problems under the current market economy conditions, and their operability is not strong, and some of them can no longer be applied to the current situation. Therefore, it is necessary to formulate reasonable punishment standards according to the actual situation, improve the effectiveness of administrative punishment, and give criminals enough deterrence.
1. Raise the fine standard
Regarding administrative punishment, a very important one is fine. Many laws and regulations set the fine standards according to the price level at the time of law making. With the passage of time, the price level has changed obviously, but the basis of law enforcement is still the standard stipulated by the law at that time. Therefore, the money confiscated by the offenders is insignificant compared with the high profits they pursue. The price level is changing, so is the currency value. The current monetary value is very different from that when the law was enacted, and this difference should be fully considered when implementing punishment.
In addition, how to define illegal gains is also an important issue in practice. For example, according to Article 1 1 of China's Food Hygiene Law, those who engage in food production and business activities without obtaining a hygiene license or forging a hygiene license shall be banned by the health administrative department in accordance with Article 40 of the Food Hygiene Law, and administrative penalties shall be imposed according to the following provisions: (1) If there are illegal gains, the illegal gains shall be confiscated and one to one shall be imposed.
(two) there is no illegal income, and a fine of 30 thousand yuan or more shall be imposed on 500 yuan. The definition of illegal income is too small, and the corresponding punishment is lighter; Unable to define the illegal income, impose a fine of more than 500 yuan. With the current economic level, the purpose of punishment can not be achieved at all, let alone the effect of early containment.
Therefore, monetary punishment must raise the punishment standard, so that punishment can achieve the corresponding purpose. For example, regarding the problem of posting small advertisements indiscriminately, law enforcement departments have taken various measures to ban illegal small advertisements at present, but only a small amount of fines are imposed on the responsible persons, or the relevant responsible persons are punished to eliminate illegal small advertisements. This has not achieved satisfactory results, making the problem of small advertisements impossible to cure. The main reason is that the punishment is not strong enough to give criminals enough deterrence. At present, Beijing plans to review the draft city appearance and environmental sanitation bill, and the maximum penalty for posting small advertisements is 500,000. We believe that this kind of punishment will give criminals enough power to deter them in advance.
2. Increase non-monetary punishment.
In addition to imposing fines on illegal acts, other punishment methods can be adopted. Such as ordering to suspend production or business, withholding or revoking licenses, withholding or revoking licenses, administrative detention, etc. These punishments are already very severe, but after the punishment, there is no stricter restriction on the business of the offenders. Many similar illegal incidents occur frequently because of insufficient punishment and restriction on offenders. In this regard, China's laws and regulations are relatively light in punishment and lack sufficient deterrence, giving offenders many opportunities to commit crimes by the same means, while many foreign laws are stricter. For example, American law stipulates that it is a crime to manufacture and sell fake goods regardless of the amount, and it is punishable by a fine of more than 250,000 US dollars and less than 6,543,800 US dollars, and imprisonment for more than 5 years. If there is a false criminal record, the fine can reach $5 million. However, the current laws and regulations in China just ignore the harm of counterfeiting and selling fake goods, and the punishment for counterfeiting and selling fake goods is relatively light. This makes many lawless people dare to trample on the dignity of the law and break the law many times.
(B) enrich the means and methods of punishment
Many law enforcement departments and law enforcement personnel believe that the existing administrative punishment means are not enough, and it is difficult to effectively punish the illegal counterpart. Therefore, we should modify and adjust the existing punishment methods and add some new ones. For the means and methods of administrative punishment, we can classify all kinds of administrative punishment means by combining classification and enumeration. Such as disciplinary action, property punishment, behavior punishment, personal punishment, etc. It is supplemented by warning registration and accumulation system, separation of fine decision and collection system, summons, interrogation and detention punishment and evidence collection system and other auxiliary measures. In this way, the purpose of punishment is achieved through the combination of various punishment methods.
(three) standardize the law enforcement behavior of administrative law enforcement personnel.
Strengthen the construction of law enforcement team, improve the professional level of law enforcement personnel and strengthen ideological education: First, strengthen the ideological and political education of law enforcement personnel. The quality of law enforcement team and the level of law enforcement are the key links related to whether the law can be implemented, and various means and ways should be taken to improve the level of law enforcement personnel. Ensure that in law enforcement, be honest, do not be selfish, handle cases impartially, be accurate in qualitative analysis and appropriate in sentencing. Ideological and political education should be regular and institutionalized, with special personnel in charge and unremitting efforts. Through ideological and political education, we should cultivate models and improve them in an all-round way. The second is to establish a law enforcement accountability and reward and punishment mechanism. This includes establishing personal law enforcement files, rewarding those who strictly enforce the law, are loyal to their duties and successfully complete the law enforcement tasks, and severely punishing those who are lax in law enforcement, violate the law and discipline and bending the law, and loading the processing information into files, which is linked with promotion, capital increase, promotion and reuse. It is also necessary to establish a system of investigating misjudged cases. From filing, investigation, trial to execution, we must implement the responsibility system of special personnel. If there is a wrong case, pursue it to the end and never tolerate it. The main prize of the award, the penalty should be punished; The third is to improve the professional quality of law enforcement personnel. Strengthen legal education, and non-law enforcement personnel also learn legal knowledge. Appropriately improve the treatment of law enforcement personnel and attract outstanding college students to engage in law enforcement. It is necessary to close the entrance of law enforcement personnel and conduct regular assessment at the same time. Those who fail the examination will be resolutely transferred from law enforcement agencies. At the same time, formulate rules and regulations to restrain and standardize the law enforcement behavior of law enforcement personnel, truly realize effective law enforcement and improve law enforcement efficiency.
We should also severely punish those who abuse power for personal gain to ensure a good law enforcement team.
(4) Strengthen communication and cooperation among departments.
Don't pass the buck when you are in trouble, but cooperate with each other to ensure the effectiveness of law enforcement. Those who pass the buck should be held accountable. We should stipulate the rights and obligations of the penalty-executing department through the system, and return part of the execution right to the administrative organ at the same time, so as to reduce the number of cases applied to the court for execution. This will not only ensure the court's detached position, but also enable more administrative enforcement to be carried out smoothly, thus improving the effectiveness and efficiency of administrative law enforcement.
The perfection of laws and regulations needs a certain process, and it is not an overnight thing to stop illegal and criminal phenomena. As long as we formulate reasonable solutions according to the actual situation, increase the intensity of administrative punishment and improve the effectiveness of administrative punishment, illegal phenomena will continue to decrease, social stability, unity and harmonious development, and people will live and work in peace and contentment.