Discuss On The Administrative Penalty Discretion Of The Administrative Department For Industry And Commerce And Its Regulation

As a kind of administrative discretion, the administrative penalty discretion can be seen in many fields in our life, and its existence has objective necessity. It helps to strengthen the administration and Improve the efficiency of administrative law enforcement. But as we know"absolute power corrupts absolutely", the abusement of the administrative penalty discretion is common in the practice of administrative law enforcement.This problem has big hazard to our society, and many different reasons cause its existence. As an important administrative law enforcement department, the administrative department for industry and commerce are responsible for maintaining the order of the socialist market economy. There are hundreds of laws and regulations which have relevant provisions of the administrative penalty discretion of the administrative department for industry and commerce. Under the jurisdiction of an extremely broad field, the number of administrative penalties made by the administrative department for industry and commerce each year is very impressive. This paper is focused on the regulation of the administrative panalty discretion because of its necessity and possibility of abuse. As a common form of penalties, fine is much easier to be counted than other forms. So we choose fine to be studied in several important areas of law enforcement, such as supervision of registration, product quality, trademark, license, unfair competition and advertising.From the point of the logic development of the formation and operation of the administrative penalty discretion of the administrative department for industry and commerce, this paper argues that the regulation can be achieved by three ways, which are the legislative control, the judicial control and the administrative control. As a prerequisite, the legislative control can play an important role by improving the quality of legislation, strengthening the procedural legislation, strengthening the executive and legislative review system and establishing an accountability system of the the administrative law enforcement. While the judicial control is the guarantee, the administrative control is the core, which can be devided into three stages according to the specific operation of a case, which contains criminal investigation, choosing the applicable law and making the decision of penalty. During this period, the principles of proportionality, reviewing the main proof and exclusion of illegal evidence should be applied respectively, and the principle of fair procedures must be followed all the time. In order to aviod "lazy discretion", we must consider all relevant factors and do not consider irrelevant factors. Besides, we must eliminate abnormal emotions, respect for precedent and practice, follow discretionary basis, emphasize the explanation system, and fully listen to the views of the parties to ensure a reasonable exercise of the administrative penalty discretion of the administrative department for industry and commerce. In addition, other systems can be used as an extra regulation, such as the administrative review system, hearing system, supervision system between different levels, review system on the files, and so on.