On The Application Of Severe Punishment Clause In Administrative Punishment

Article 49 of the newly revised Administrative Punishment Law of the People’s Republic of China in 2021 clarified the legal basis for heavier punishment in the general law for the first time,making the heavier punishment as a discretionary rule of administrative punishment return to the research field of scholars.However,throughout the research field of administrative punishment law,there is no systematic study of the heavier punishment provisions except for a small amount of interpretation of Article 49 of the Administrative Punishment Law.As a micro discretion rule of administrative punishment,heavier punishment,like lighter and mitigated punishment,is an indispensable part of the discretion structure of administrative punishment,and is also an inevitable institutional requirement for realizing the purpose and function of the Administrative Punishment Law.However,the research field of administrative penalty law has carried out different degrees of discussion on the construction and improvement of the lighter and mitigated system,but there is little research on the heavier punishment.Therefore,based on the practice of the Administrative Punishment Law,the author chooses the heavier punishment clause in the administrative punishment as the research object,aiming to find out the problems in the application process of the heavier punishment clause by combing the legislative status of the heavier punishment clause and analyzing the typical cases of the application of the heavier punishment clause,and through the analysis and interpretation of the theory of the Administrative Punishment Law,Under the current regulatory system,we should rationally think about the way to deal with the dilemma of the application of the heavier punishment provisions,and strive to systematically respond to the needs of the application of the heavier punishment provisions,so as to provide some ideas and contribute to the theoretical development and application improvement of the Administrative Punishment Law.The text of this article is mainly composed of four parts: The first part explains the application of the heavier punishment,including the general theory of the heavier punishment clause and the justification of its application,which constitutes the cornerstone of this article;The second part combs and analyzes the legislative status quo and typical cases of the heavier punishment clauses in administrative punishment as the empirical basis for raising questions;The third part refines and explains the problems in the application of the heavier punishment clause,including the lack of general provisions of the heavier punishment clause,the lack of scientific administrative discretion benchmark,the confusion of the application relationship between the heavier punishment clause and similar clauses,and the improper application of the heavier punishment clause caused by the excessive expansion of legislation;The fourth part is the improvement suggestions for the above problems,including the establishment of the general provisions of heavier punishment in the Administrative Punishment Law,the scientific administrative discretion benchmark from the element discretion and the effect discretion,ensuring the correct application of the heavier punishment provisions,and strengthening the local legislative control over the expansion of the heavier punishment provisions.From the legislative,law enforcement,judicial and micro,macro and other levels and multi-dimensions,we should respectively solve the problems of the insufficient level of the effectiveness of the heavier punishment legislation,the weak operability of the discretionary basis for the application of the heavier punishment provisions,the shortcomings of the application of the heavier punishment provisions in the administrative law enforcement system,and the adverse impact of the excessive expansion of the heavier punishment legislation on the development of the entire administrative punishment law.