Research On The Setting Authority Of Administrative Penalties In Local Regulations

According to the relevant provisions of the Constitution of the People's Republic of China(hereinafter referred to as the Constitution)and the legislative law of the People's Republic of China(hereinafter referred to as the Legislative Law),china's positioning of the Local ordinance is the refinement of the upper law and the implementation of the spirit of the upper law,principles and specific norms.Under the unified leadership of the Central Government,local governments shall,in accordance with the provisions of the Constitution,the legislative law and other relevant laws,formulate Local ordinance within the limits of their legislative powers.Article 8 of the Administrative Punishment Law of the People's Republic of China(hereinafter referred to as the administrative punishment law)stipulates eight types of administrative punishment,and paragraph 7 of this article stipulates that in addition to laws and administrative regulations,the Local ordinance does not have the right to create the type of administrative penalty.At the same time,Article 73 of the Law stipulates that the Local ordinance has the right to "refine" the superior law according to the actual situation in its own administrative region The Local ordinance shall have the power to make "local affairs" in order to achieve the equalization of basic public services in their respective administrative areas,and shall have no laws or administrative regulations in the country other than those reserved by law,the local authorities shall have the right to enact local laws in accordance with their actual needs.However,the local understanding of "refinement","local affairs" and "not yet enacted laws and administrative regulations" is different.At the same time,due to the different understanding of the principle of "non-conflict" in local legislation practice,there are also different breakthroughs in the administrative penalty acts,the scope of administrative penalty and the types of administrative penalty stipulated by the Superior Law.Some of the breakthroughs can be understood as the refinement and implementation of the Superior Law,which has a legal status,while some of the Local ordinance are "conflicts" with the Superior Law,it violates the basic spirit,principle or specific norm of superior law and belongs to invalid legal norm.For example,the widely controversial Local ordinance's system of punishment for breach of trust is a breakthrough in the types of administrative punishment under Article 8 of the administrative punishment law,or the Local ordinance may set a range of administrative penalties in addition to the range of administrative penalties provided for in the superior law,or reduce or increase the number of administrative violations provided for in the law,and so on.Because of different understandings of "non-conflict",these Local ordinance exert legal force in local areas,whether or not they conflict with the Superior Law.The author tries to sort out and solve the dilemma of illegality faced by the Local ordinance by discussing the legitimacy of the Local ordinance in terms of the illegal act,the range of punishment and the types of administrative punishment,it provides a basis for the expansion of the administrative punishment power of the Local ordinance.