| Since my country’s "Administrative Penalty Law" was promulgated and implemented in1996,it has played an important role in promoting administration according to law.However,with the construction of the rule of law and the rapid development of society,the legislative design more than 20 years ago has gradually exposed many problems.The "Administrative Penalty Law" itself lacks achievements in how to judge and identify administrative penalty.Its Article 8 "Listing + Pocket" type of punishment classification method is difficult to clearly determine what is the administrative penalty,and it is increasingly difficult to respond to the needs of today’s practice.In addition,the multi-stage behaviors in the administrative law are intertwined.Whether in theory or practice,there has been a dispute about the identification of administrative penalty behaviors.Accurately defining administrative penalty acts is not only an inherent requirement for guaranteeing the unity of legislation,regulating the exercise of government powers,and achieving the same judgment in judicial cases,but also a powerful prerequisite and way to protect citizens’ legitimate rights and interests.This article takes the opportunity of amending the "Administrative Penalty Law" to re-examine the basic theoretical problem of the identification of administrative penalty behavior,elaborate and define the identification difficulties and practical disputes,and then propose corresponding improvements.The first part first expounds the concept and characteristics of administrative penalty from a theoretical perspective,clarifies the connotation,and its core requirements are sanctions.Then compare other sanctions with administrative penalty,including criminal penalty,administrative sanctions and punitive behaviors of the subject in the field of autonomy,to further clarify the extension of administrative penalty.The second part makes a systematic comparative analysis between administrative penalty and its similar behaviors,so as to further deepen the understanding of administrative penalty.Administrative penalties and administrative coercive measures have certain similarities in performance and characteristics,but administrative coercive measures are not sanctions and are temporary restrictions.Both administrative penalty and administrative enforcement are based on the system derived from the counterpart’s failure to perform statutory obligations,but the former is a sanctioned legal responsibility,and the latter is only for compelling the counterpart to perform the original obligations.Both administrative penalty andadministrative orders are traditionally high-power administrative acts,which set certain obligations for relatives,but the primary function of administrative orders is to ensure and realize the fulfillment of legal obligations.The revocation of license licenses and the revocation of administrative licenses in administrative penalty are both deprivations of the rights and interests of the counterparts.The biggest difference between the two is whether the issuance of administrative license licenses is legal.The third part focuses on the main problem of the identification of administrative penalty behavior,and expounds the demarcation between the disputes in theory and practice.Sanctions are the core elements for identifying administrative penalty behaviors,and they are broadly and narrowly understood.A secondary obligation should be adopted to say that confiscation of illegal gains also has this nature.Due to the confusion of the legal norms and the provisions of the provisions,the conceptual separation of the same type of behavior and the identification of legal attributes are difficult.Among them,the typical ones are ordered administrative actions and outlawed actions.Among the ordered administrative acts,the orders for corrections and orders to stop illegal acts are administrative orders,orders to stop production or business or to close,and orders to dismantle illegal structures or facilities should be characterized as administrative penalties.The ban is not an administrative penalty because it has no specific content and specific sanctions,and it cannot absorb fines and confiscations.At the same time,social development has also brought about new types of penalty needs and challenges,which are particularly evident in recent administrative violations of information disclosure and disciplinary measures.In the act of publishing illegal administrative information,the announcement of administrative illegal information that conforms to the meaning effect and legal effect can be used as a simple sanction to exert influence on the reputation,honor,reputation,etc.of the relative,so it belongs to the new penalty of reputation penalty Types of.Among the disciplinary administrative disciplinary measures,the measures of strengthening management and non-benefiting are not sanctioned,and the "blacklist" publicity and the restrictive measures of employment,production and operation should be characterized as administrative penalties.On the basis of the above discussion,the fourth part puts forward suggestions for the improvement of the identification of administrative penalty behaviors,with a view to reducing the occurrence of disputes.The first is that the "Administrative Penalty Law" is to add the concept clause of administrative penalty,and the category system of Article 8 stipulateswhether it is to "N+1" on the basis of maintaining the previous "6+1" model,or to adopt a typed "concept" The legislative model of "listing" or "name listing + category summary" requires careful consideration and optimal choice.Secondly,it is necessary to take stock of the existing legislative regulations.In the process of formulating and revising laws with the same name but different names and different names,we should pay attention to the legal expression of the norms and the provision of provisions in a scientific and reasonable manner.Finally,for the inconsistency of judgments in judicial practice,it is necessary to give play to the role of publicity guidance for typical cases. |
