On The Procedural Control Of Administrative Penalty Discretion For Tobacco Monopoly

This article well researches the Administrative Penalty Discretion for tobacco monopoly, and studies how to apply procedures to control the exercise of Administrative Penalty Discretion. It's hoped that the tobacco monopoly administrative department could enforce the law correctly and promptly. It's also hoped that the administrated people's legitimate rights and interests could be guaranteed well. I. The existence and negative effect of Administrative Discretion (I) The meaning of Administrative Discretion Administrative Discretion is the procedures or rights that administrative subject under the legal standard according to its rational cognition exercises selection right. It has the legal, independence, selectivity, relativity etc characteristics. When civil servants self-rule they should follow the following principles: ①To be legal ②To be rational ③To serve the people wholeheartedly ④To safeguard national safety, honor and interests ⑤To guard state secrets ⑥To be just and incorruptible (II) The necessity and objective basis for the existence of Administrative Discretion The administrative decision includes three factors ①Discovering and affirming facts ②Applying laws ③Making the appropriate decisions. In this course, affirming facts and applying laws themselves include the factors of Self-Ruling. In this process affirming facts and applying laws themselves include the factors of discretion. Laws can not exterminate discretion. The objective basis of administrative discretion: The first, modern society is changeable and it is difficult to predict the future, so it is necessary to authorize the executive to make decision according to the circumstances. The second, modern society is extremely complicated, so the executive have to make specific decision. The third, modern administration is high-level technology, so laws can only stipulate the mission and purpose that should be achieved. And the executive take appropriate executive ways. The forth, modern administrative scope is wide, so it is difficult to make all the laws that administrative activities are needed and the rights of the executive have to be widen. The fifth, modern administration opens up many new activity fields, so the executive must make exploratory decisions without the rigid limitations of laws. The sixth, making laws usually involves different judgments of value. (III) The existence of administrative discretion and the widen negative effects The negative effects are in the process of Administrative penalty for discretion. ①Discretion is not fair. ②Discretion differs in specific administrative activities. ③delay doing legal duties. The possible negative effect: 1. Not being beneficial to the steady of social order 2. Breaking social order 3. Encouraging the "special privilege"mentality and causing bad social phenomena 4. Causing corruption and affecting party and government's prestige II. The reflection in administrative penalty for discretion tobacco monopoly According to the laws and regulations of China, during the specific administrative penalty for tobacco monopoly, discretion reflects the following three aspects: the discretion for facts; the discretion for judging the importance of the facts; the discretion for choosing the penalized people, sorts and scope.In the laws and regulations in force in China administrative penalty includes warning, enforcing purchasing, fining, confiscating illegal income, stopping production and canceling management qualification etc. It mainly stipulates three kinds: 1. Certainty: for a certain illegal activity, laws clearly stipulate the penalized people, sorts and the proper administrative penalty. 2. Selection: for a certain illegal activity, laws stipulate the penalized people and scope that can be selected from. 3. The amount of fine: laws stipulate the limitation. III. The significance of the administrative process of administrative penalty for discretion tobacco monopoly ]Administrative process is the process that includes the ways, procedures, time and order of administrative activities. The significances of administrative penalty for discretion inflect: 1. Limiting free execution. Setting up administrative procedures may prevent administrative subject use the procedures illegally, delay the happening of administrative activity. It can also avoid administrative subject choosing the improper means and scope to add to the duties of administrative object. 2. Balancing judgment and efficiency. Administrative procedures give administrated people enough opportunities to self-defense, so the application of re-discussion and administrative litigation are decreased. This objectively has increased the administrative efficiency. 3. The key of protecting administrated people. Giving administrated people necessary rights makes them can protect their own rights through exercising their own procedures. And this realizes the control for administrative penalty for discretion. IV. Controlling the procedural mechanism of administrative penalty for discretion tobacco monopoly rationally The penalty procedures in Administrative Penalty Law and the Stipulations of Administrative Penalty for Tobacco Monopoly whichis based on the law are not controlled and it gives too much discretion rights. The main expressions: ①The stipulations on inform. The relation between ways, time and contents are not clear. ②The stipulations on the general procedures. In the stipulations on the general procedures there aren't the stipulations on the register procedures, or the stipulations are not detailed. In addition, there isn't the deadline of the conclusion about investigation. ③The stipulations on administering affairs. In Administrative Penalty Law there are not the stipulations on whether the administrated people can administer affairs, the stipulations on the executive administering affairs, and the stipulations on the record of the administering affairs. The Stipulations of Administrative Penalty for Tobacco Monopoly doesn't stipulate the time limit of administering affairs. The procedural mechanism of administrative penalty for discretion tobacco monopoly should be made up of the following procedures and rules. 1. Opening information. Opening information is also called free information. It means all the administrative information about administrated people's rights and duties should be open to the society, except the information which is the law requires to keep as a secret. All the citizens and organizations can look up or copy according to the law. 2. Informing and explaining reasons. Before executing, the executive make his identity clear and inform administrated people his rights and duties. When making the decision of administrative penalty, the executive should inform administrated people the contents of the penalty and explain its basis of facts and laws. 3. Avoiding. It is also called neutrality. It means that the people who have common interests with administrative activity mustn't take...