A Study On The Application Of Mitigating Penalty In Administrative Penalty

Article 27,paragraph 1,of the "Law of the People's Republic of China on Administrative Penalty" is a provision on mitigating the circumstances of administrative penalty.It is generally believed that the setting of mitigating penalty is a concrete embodiment of the principle of excessive penalty in administrative penalty.Achieving justice,combining penalty and education,has achieved the purpose of maintaining social order.However,due to the limitation of the legislative language,the method of concurrently providing lighter and lighter penalty in the legal provisions has caused confusion in the application.It is impossible to distinguish between the applicable standards of lighter and lighter penalty,and there are many uncertain legalconcepts,the limitation of legislation has given the administrative organs greater discretion to implement the reduction of penalty,which has led to the abuse of reduction of penalty in the practice of administrative law enforcement.In order to deal with the issue of the legality and rationality of mitigating the exercise of discretion,it is urgent to establish a scientific and reasonable discretionary benchmark.Under the guidance of the contemporary uniform view of arbitration,mitigating penalty includes two parts: elementary discretion and effect discretion.At the level of elemental discretion,certain disciplinary benchmarks are constructed mainly through the use of plot refinement techniques.This article,on the one hand,sorts out the pattern and content of detailed plots of administrative penalty normative documents in various localities,on the other hand,explores the direction of individual cases in judicial practice.Normative documents can further refine the circumstances specified in Article 27,paragraph 1,of the Administrative Penalty Law according to three criteria: 1)the offense is slight,2)the offender does not know enough,and 3)the offender has regrets Performance;showing two characteristics,the first is to attach importance to subjective attitudes,and the second is to use objective techniques to set judgment rules for subjective attitudes.Cases in judicial practice highlight the court's refinement of the harmful consequences,focus on the consideration of harmful consequences in the case,and reflect respect for administrative discretion.In addition,from the logic of legislation and the practice of administrative law enforcement,it can be concluded that the criteria for independent application of mitigation of penalty should be distinguished from the degree of light penalty.Compared with lighter punishment,the application of mitigating punishment should add corresponding restrictive conditions on the basis of statutory plots,and the application of "other" plots should consider the degree of subjective malignancy.In the aspect of effect discretion,judicial cases show relatively limited initiative,which mainly depends on normative texts.On the one hand,the types of mitigation criteria for mitigation of penalty are established by reducing the nature of penalty and the type of penalty;Methods To determine the legal minimum penalty and the magnitude of the mitigated penalty to build a benchmark for the magnitude of the mitigated penalty.