Research On The Applicable Elements Of "First Violation Of Impunity"

The origin,development and incorporation of the system of "no punishment for initial violations" are the inevitable result of implementing the principles of fair punishment,combination of punishment and education,as well as the course of conforming to the development and reform of people-oriented law enforcement and optimizing business operation.As a kind of practice responsive legislation,the entry of "no punishment for initial violation" into the law is a confirmation and solidification of the exploration practice in recent years,and also provides a basic legal basis for the orderly and effective implementation of the system in the next step.However,through observation,it is not difficult to find that the core of the application of the system-the application elements and their recognition of the administrative subjects in various fields in various regions are not uniform:although the new Administrative Punishment Law clearly unifies the application into three elements in order to standardize the system discretion,that is,the initial violation of the law,the slight harmful consequences,and timely correction are of great significance;However,due to the abstract and vague nature of the legislative expression itself,the connotation and determination of the applicable elements are not completely clear and clear,and there is still huge room for interpretation.In addition,from the existing literature,there are few special,in-depth and systematic studies on the three legal elements in the academic community at present,and the analysis of relevant writings combined with practice is also relatively weak.Therefore,it is of theoretical and practical significance to take the applicable elements and their identification as the research object in this paper,which will help enrich the theoretical research and guide the law enforcement practice.On the basis of sorting out the system context of "no punishment for initial violation",this paper mainly deconstructs and proves the three legal elements layer by layer through theoretical interpretation,system analysis,practical inspection and normative inspection of relevant system texts in various regions,and initially constructs the understanding,discretion and identification path of the applicable elements of the system.In the determination of the elements of "initial violation",the determination of the"times" of violations can appropriately refer to the confirmation criteria of"times" in criminal law theory.After the determination of the "times" of violations is completed,the "initial" should also be measured from the three dimensions of time,space and field to determine the scientific reasonable determination cycle,regional differences and field restrictions;In addition,it should also be noted that the illegal acts that can be applied to the system should be limited,and some specific violations that are prone to bad effects and serious damage to public legal interests should be excluded from the application of the system.There are two keys to the rational construction of the judgment path of "slight harm":first,the administrative subject should make a distinction in understanding and application of similar systems such as"slight non punishment" and "initial non punishment" based on different judgments of "slight harm";second,the administrative subject should combine local law enforcement practice to scientifically determine the regional discretion benchmark of the concept of "slight",which is a legal uncertainty,So as to facilitate the discretionary control and fair application of law enforcement practice.To judge the elements of "timely correction",we should focus on the two aspects of "timeliness" and "correction effectiveness",and include as many correction behaviors with different subjective attitudes,different types and different ways as possible:combining the current three main types of correction,the measurement of "timeliness" should simplify the timely evaluation by reasonably determining the time reference;In addition,the judgment of some typical cases enlightens us that the determination of"effectiveness" should pay equal attention to the process and results of correction,and make the measurement of correction effectiveness concrete through the investigation of both process and substance,so as to finally determine whether the correction is timely or not and how effective it is.