Legal Risks And Regulation Of Automated Administrative Penalties

As a new way of administrative punishment,automatic administrative punishment refers to the administrative activities that the administrative subject uses artificial intelligence to innovate administrative methods and law enforcement means to realize the automation of some or all links in the process of punishing the counterpart who violates the administrative order by impairing rights or increasing obligations.Primary automation and partial automation are the mainstream forms of automated administrative punishment at present and are widely used in our country’s practice.Automated systems such as automatic case measurement and punishment system and electronic police have become powerful tools to assist administrative organs in implementing administrative punishment.At the same time,automatic administrative punishment plays a vital role in promoting the construction of digital government,improving the efficiency of administrative law enforcement and improving the fineness of administrative punishment.In recent years,automatic administrative punishment has not only become one of the hot topics in academic circles,but also attracted the attention of legislation.In 2021,the Administrative Punishment Law responded to some problems of automatic administrative punishment.However,at present,the research on automatic administrative punishment in Chinese academic circles is still in its infancy,and there is no unified theoretical system.There are also some problems in the regulation of automatic administrative punishment by legislation,such as incompleteness,lack of specificity and lack of specific legislation.Faced with the problems and risks in the application of forensic equipment and discretion system in automated administrative punishment and its relationship with administrative openness,administrative participation and administrative neutrality,the existing norms and theories are difficult to deal with.Therefore,it is necessary to explore and regulate the legal risks of automated administrative punishment,protect citizens’ legitimate rights and interests,restrict the state power that operates through automated technology,and promote the sound development of automated administrative punishment.This paper combs the basic theory of automated administrative punishment,clarifies its concept,development process and types,and clarifies the differences between automated administrative punishment and traditional administrative punishment,as well as the regulatory status quo.Then,based on practical cases,it points out that there are five major risks in the actual implementation of two types of automated administrative punishment in China,namely,inadequate application regulations of automated forensics equipment,weakening of the auxiliary position of the discretion system,resulting in discretion flaws,impact of automated administrative punishment on administrative openness,erosion of administrative participation and impact on administrative neutrality.The proposed regulatory measures include enhancing the operability of automatic equipment setting standards,strengthening the examination and supervision of electronic evidence sources,and perfecting the relevant system standards of automatic forensics equipment;Strengthen the auxiliary positioning of the discretion system and clarify the scope of application;Enhance the openness of administrative punishment by constructing expert review and evaluation system,innovating the way for administrative organs to explain their reasons and fulfill their obligations;Optimize the existing statement,the defend oneself guarantee system,and improve the performance of the obligation of the administrative organ to inform to protect the participation rights of the counterpart;The neutrality of administrative punishment is shaped by regulating algorithm and clarifying the central position of people.