A Study On The Application Discretion Of Mitigating Administrative Penalty

Mitigation of punishment is one of the lenient punishment systems for the parties stipulated in the Administrative Law Punishment Law.It has the functions of adjusting the statutory penalty range,reflecting the commensurability of excessive punishment,and ensuring the justice of individual cases.important meaning.Most of the current research focuses on the macroscopic grasp of the discretionary benchmark for administrative punishment,and neither theory nor practice have formed a unified standard for the system and application of mitigating punishment.Therefore,administrative law enforcement officers are confused in the application of reduced punishment,which often leads to the phenomenon that administrative punishment is not equal to the punishment in practice,and the legitimate rights and interests of the parties cannot be guaranteed.The reasons are analyzed from the perspective of legislative norms: First,Article 32 of the Administrative Punishment Law stipulates that the circumstances of lighter punishment and mitigating punishment are juxtaposed,and the respective applicable conditions for lighter punishment and mitigating punishment are not distinguished.Second,there are many uncertain legal concepts in the law,such as "harmful consequences","performance of meritorious service","other" and other concepts that need further explanation.From the perspective of law enforcement practice,due to unclear standards for mitigating punishment,administrative law enforcement personnel are bound by factors such as the administrative law enforcement responsibility system and public opinion,and often avoid the application of mitigating punishment,resulting in the falsification of laws and regulations.Therefore,in order to solve the application of mitigating punishment in practice,regulate the exercise of the discretionary power of administrative punishment in accordance with the law,and realize the justice of individual cases,it is necessary to analyze the mitigating punishment system and build a norm for mitigating punishment.Based on the system function of mitigating punishment and the principle of application,this paper attempts to explain the application elements of mitigating punishment in detail and clarify the applicable standard of mitigating punishment.It is divided into five parts:First of all,it introduces the value function,applicable conditions and norms of mitigated punishment,and analyzes and deconstructs its external structural relationship to clarify the relationship between mitigated punishment,lighter punishment and no punishment.The second is to explore the practical dilemma of the application of mitigated punishment;The third is to summarize the applicable principles of mitigating punishment,which will guide the determination of the following circumstances of mitigating punishment discretion;The fourth is to define the specific discretion of mitigating punishment;Finally,by distinguishing the application of mitigated punishment and lighter punishment,the applicable standard of mitigated punishment is clarified.