Research On Breach Of Procedure Of Administrative Penalty

The theory about the illegal procedure of administrative penalty is an integral important part of the theory on administrative procedure as well as even administrative law .In our country, because it is for a long time under the influence of the traditional administrative executive ideas that attach more importance to substantive law than to procedural law, the theoretical study for illegal procedure of administrative penalty is very weak, and the illegal phenomena of administrative penalty procedure are widespread .Therefore ,we should carry out essential study for it so as to provide the theoretical guidance for realizing the rule of administrative law ,preventing or reducing the illegal procedure of administrative penalty ,and promoting the administration by operation of law.Based on the foregoing analyses, in the tripartite perspective of theory, legislation and practice, the article comprehensively demonstrates the theory about the illegal procedure of administrative penalty by means of comparative study, and put forward to several reasonable suggestions for dissolving it. Firstly, the article has studied its basic theoretical questions such as definition, character, behavior mode, and mechanism of liability .The article holds that it can be reduced to an unlawful conduct that the corpus of the administrative relationship between laws breaches the constructive procedure in the administrative punishment, namely breaches the constructive mode, step, time, and order of administrative penalty. Accordingly the corpus assumes the corresponding administrative liability. Divided according to contents, it includes many forms of illegal procedure such as showing cause, hearing representation, plea, opening of intelligence information, avoidance, testimony, limitation period, settlement .By the principle that obligation must be performed, the illegal procedural act can be affirmed invalid,revoked, amended, revised by investigation of liability. Based on extending research on the basic theory about the illegal procedure of administrative penalty, the article has linked to the reality, analyzed and concluded some illegal procedural act, such as showing cause, hearing, which generally exists in our country's present administrative penalty.At the same time, the article has also analyzed deeply the reasons why the breach of procedure emerges, according to its four factors, such as corpus, idea, law and supervision. Besides, the article has pondered further on how to deal with the breach of present administrative punish mental procedure in our country, and put forward to five suggestions so as to promote the executive administration by operation of law: 1) rectify the understanding of procedural value. 2) Enhance the lawful quality of the executives. 3)improve the mechanism of the investigation of liability . 4) Perfect procedural legal system. 5) Draw up the unitary administrative procedural law.