Research On The Subjective Fault Of Administrative Punishable Acts

Whether the subjective fault of the person concerned should be taken into account in administrative penalties has been the subject of divergent views in academic circles.Before the amendment of the Administrative Punishment Law in 2021,administrative punishment did not explicitly require the determination of the subjective fault of the party concerned in the legislation,and the academic and practical circles were divided on this issue.The new Administrative Punishment Law stipulates in Article 33(2)that if the party concerned has sufficient evidence to prove that there is no subjective fault,no administrative punishment shall be imposed.If the law or administrative regulations provide otherwise,the provisions shall apply.The introduction of the subjective fault clause makes China’s administrative punishment for the first time in the legislative level to establish the principle of "no fault is not punishable".However,the introduction of the subjective fault clause did not completely quell the controversy,but brought more problems of application.Therefore,this paper is divided into four chapters to analyze the understanding and application of the subjective fault clause,and to study the subjective fault in the behavior of administrative punishment.Chapter 1,"History and Analysis of Subjective Fault Determination",will firstly introduce the history of the subjective fault clause into the law,the academic controversy of subjective fault and the attitude of the practical community towards the determination of subjective fault,so as to explain the background of the subjective fault clause into the law.Secondly,the necessity and rationality of the subjective fault clause will be analyzed,and finally,the current difficulties of the application of the subjective fault clause will be elaborated,mainly including: the nature and meaning of subjective fault need to be determined,the rules of proof of subjective fault need to be improved,and the application of the exception of "if otherwise provided by laws and administrative regulations" is not yet clear.The application of the exception "as otherwise provided by laws and administrative regulations" is not yet clear.The second,third and fourth chapters will analyze and discuss the above dilemmas respectively.Chapter 2,"The Nature and Meaning of Subjective Fault",firstly,using the methods of textual interpretation and systemic interpretation,discusses that subjective fault should be regarded as a factor of punishment,rather than a constituent element of illegal behavior.Secondly,the meaning of subjective fault should include intentional and negligence,and for the consideration of the proportionality of punishment,intentional and negligence should be distinguished in the quantitative punishment,and gross negligence should be distinguished from general negligence and minor negligence.Chapter 3,"Understanding and Application of the Rules of Proof of Subjective Fault" will elaborate on the methods and standards of proof of subjective no-fault.To analyze the method of proof,we should first understand the basic principle of subjective fault determination-the rule of thumb.Through case studies,this paper lists three typical criteria for determining no-fault,such as "fulfillment of legal obligations","lack of possibility of perception of illegality" and "force majeure",and This paper proposes that the error in the knowledge of illegality can be used as a supplementary reference standard.As for the understanding of "sufficient to prove",this paper believes that it should be recognized as a standard of proof and be interpreted in a diversified manner in conjunction with the pursuit of value.Chapter 4,"the application of the exception rule",due to the subjective fault clause into the law not long ago,there are no legal documents on the subjective fault clause in the exception rule in detail,the academic community is also relatively lack of the application of the rule to explore.Therefore,this chapter will discuss the application of the exception rule,including: "the subjective fault as a constituent element","the use of the principle of no-fault liability","the subjective fault is limited to intentional or The exceptions include: "treating subjective fault as a constituent element","using the principle of no-fault liability",and "limiting subjective fault to intent or negligence".