On The Restriction Of Practice In Administrative Punishment

After the revision of the Law of the People's Republic of China on Administrative Penalty,the definition of administrative punishment has been clarified and the penalty of restricting engagement in certain business operations was included in the administrative punishment system.The penalty is a relatively severe punishment method in the administrative punishment system,which is mainly reflected in two aspects: the one is the scope of restriction is wide,the clause of the penalty can always be found in both administratively licensed areas and areas do not need administrative licenses;the other is the time range of restriction is wide,from several months to a lifetime ban.For administrative counterparts,once they are applied to restrict their practice,they lose the freedom to engage in certain business operations,and their careers can be regarded as being sentenced to "fixed-term imprisonment" or even "death penalty".There are so many regulations and applicable numbers of this penalty,but not so many studies about it,as the penalty gradually enter the public eye,many problems have gradually been exposed,and the explanation should be given.This article expounds the basic logic and specific application of restricting engagement in certain business operations through normative analysis methods and value analysis methods,etc.First of all,as an administrative punishment,the restriction is punitive,and it plays a role in adjusting social relations by reducing rights and interests or increasing obligations,whether it is discussed from the level of rights and obligations or the level of value analysis,the existence of the penalty is reasonable.Regarding the definition of the nature of restricting employment,because of the close link between conduct and qualification,the penalty is characterized by dual restrictions on qualifications and behavior,and in the end,the qualifications are derogated,it should be determined that the restriction is eligibility penalty.Secondly,in the system of intrusive administrative acts,the external performance of restricting production or business operation,the criminal record system and restricting engagement in certain business operations are similar,but there are differences between this three and it is necessary to make a distinction.Finally,it is reasonable for the design of the legal system to stipulates a ten-year or even lifetime limit,and it is the embodiment of justice.However,the purpose of administrative penalty is not just to punish,in order to reflect the role of education and save administrative law enforcement resources,the practice can be made in considering the number of occurrences of illegal acts,the amount of money involved in illegal acts,while comprehensively considering the nature of the illegal acts and harmful consequences to determine whether the illegal acts are minor,whether the non-punishment clause can be applied to ensure that administrative law enforcement resources are rationally allocated.Although the scope of regulation of the restriction is extremely wide,it is not necessary to include all occupational fields in the scope of restricted practice without restriction,and it is necessary to consider the degree of damage to social order caused by illegal acts,and include areas with a relatively large degree of damage to social order in the scope of the restriction,so that the design and application of the restriction system can be appropriate and ensure the smooth operation of restricting engagement in certain business operations system.