| Administrative punishment law of China has been implemented for 23 years,which has played an incomparable role in the construction of administrative rule of law in China.However,with the development of the times,there are many discomforts between the administrative punishment law and the current law enforcement work.Many difficulties faced by the registration and preservation of administrative penalty evidence in practice are one of the examples of the defects of administrative penalty system.Therefore,this paper takes the law enforcement disputes caused by the practice of advance registration and preservation as the starting point,deconstructs the system of advance registration and preservation in detail,clarifies the legal difficulties faced by the system of advance registration and preservation,and discusses the system reconstruction of advance registration and preservation from the perspective of legal revision.According to the nature of law and the effect of implementation,the first registration and preservation is actually a kind of administrative compulsory measure used in the collection of administrative law enforcement evidence.In the practice of law enforcement,because of the confusion of its nature,the administrative organ often uses the first registration and preservation to seal up and detain the articles,or implements the first registration and preservation in violation of legal procedures.The simple provisions of the second paragraph of Article 37 of the administrative penalty law on the first registration and preservation can not systematically regulate all administrative law enforcement evidence collection behaviors.In addition,although the first registration and preservation is a procedural act of administrative penalty,it is also a mandatory,profit and loss administrative act,which should not be set by rules or normative documents.The contradiction between the universal authorization of administrative punishment law and the restrictive authorization of administrative enforcement law is the root of the problem of first registration and preservation.Therefore,it is the main way to solve the dilemma of the system to establish a unified evidence collection system of administrative law enforcement.The first part of this paper combs the connotation and extension of the advance registration and preservation,clarifies the legislative original intention,function and nature of the advance registration and preservation,and summarizes the research status of the advance registration and preservation system by analyzing the literature.In the second part,this paper expounds the problems of the implementation of the first registration and preservation in the field of practice,and combs the implementation and Institutional Dilemma of the first registration and preservation.With the theory of administrative law,this paper analyzes that the essence of the legal dilemma is the contradiction of legal authorization between the punishment law and the compulsory law.The third part defines the related concepts and clarifies the legal attribute of the first registration and preservation.The fourth part points out the direction of system reconstruction according to the legal dilemma and legal attribute of the first registration and preservation.The fifth part is based on the theoretical direction,putting forward the concrete practical scheme of system reconstruction. |
