Research On The Application Of The Principle Of Selective Severity Punishment In The Administrative Punishment Law

Administrative penalty refers to a specific administrative act with sanction nature that is made by an administrative organ or an organization authorized or entrusted by law against a citizen,legal person or other organization that has committed an administrative illegal act but has not yet constituted a criminal crime.Compared with punishment,administrative punishment is not so severe,but it is also a kind of sanction behavior involving personal freedom and property interests,and has extremely important significance to social vita and national.Hence,during the course of building a socialist country ruled by law,we should reasonably and legally apply administrative punishment.According to the newly revised "administrative Penalty Law" Article 29,on the one hand,not to the administrative directive to the same illegal act,giving a fine more than twice administrative punishment;The other side of the shield,if the same illegal act violates multiple legal norms at the same time and should be fined,it should be punished according to the provisions of high fine amount.The content of this article reflects the principle of choosing one heavy punishment among administrative punishments,which can not only prevent the administrative subject from abusing the power of punishment,but also help to defend the just rights and interests of the administrative counterpart.It has the characteristics of equal punishment.As the administrative punishment Law does not make other detailed provisions on the principle of alternative heavy punishment,and there are problems of concurrence among different administrative regulations,there are many problems in the specific law enforcement practice of the principle of alternative heavy punishment,such as the contradiction between jurisdiction and high fine,how to choose the appropriate subject of law enforcement,how to determine the amount standard of high fine,Issues such as how to identify rules with high fines have yet to be resolved.Except the introduction and conclusion,this article is mainly divided into four parts.First of all from the classic case of alternative punishment,summarizes the focus of the case,and leads to the "alternative punishment" principle to be discussed below.The main purpose is to introduce the difficulties in the application of "choosing a heavy punishment" in practice.The article makes a theoretical analysis of the principle of "choosing one heavy punishment" in the second part.Firstly,it describes the connotation of the principle,including the analysis of the elements of the principle of "alternative heavy punishment",namely "alternative" and "heavy punishment" in the "alternative heavy punishment".Secondly,it discusses the legal concurrence relationship involved in the principle.Because there is no systematic applicable standard for legal concurrence in our country,the result of handling this situation in the process of administrative law enforcement is different.Thirdly,it indicates that Article 29 of the Administrative Punishment Law is not applicable,that is,when the illegal behavior of the doer involves some provisions of the new law,special law and superior Law,the provisions of the law should be directly applied,and the principle of "alternative heavy punishment" should not be applied any more.Finally,it expounds the significance of applying the principle of "choosing one heavy punishment",which mainly has the needs of taking into account the equal punishment,protecting the interests of the counterpart,maintaining the efficiency of administrative activities and building a government under the rule of law.The third part mainly analyzes the dilemma consist in the application of the principle of "optional penalty" and points out the causes of the dilemma.In the concrete practice of optional penalty,there exist the contradictions between the right and jurisdiction of high fine,there is no clear standard for the determination of fine amount,and the lack of supervision in practice,etc.These difficulties are due to the confusion of law enforcement system.And the administrative penalty law fails to provide specific standard for the application of the regulations.The fourth part mainly puts forward the corresponding countermeasures for the above-mentioned problems.To improve the practice and application of the principle of "alternative heavy punishment",the following aspects should be included: first,in view of the contradiction between the power and jurisdiction of high fines,the principle of first discovery and the principle of reabsorption can be coordinated to clarify the administrative authority of the main body and promote comprehensive law enforcement by administrative organs;Secondly,to determine the amount of fine,we can consider the illegal facts and legal norms,refer to the applicable mode of penalty,make a reasonable penalty;Finally,in view of the lack of effective supervision mechanism for the application of this principle,it is necessary to strengthen personnel training,promote the communication of penalty information among administrative organs,promote the top-down internal supervision administrative system and the effective supervision of national laws,so as to promote the smooth exercise of this principle.In the construction of a socialist country ruled by law,perfecting the system of administrative punishment and standardizing the application of the principle of "choosing one heavy punishment" play an irreplaceable role in protecting the legitimate rights and interests of administrative counterparts,standardizing government power and strengthening the authority of administrative law enforcement.