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Research On The Problem Of "no Punishment For First Violation" In My Country's Administrative Punishmen

Posted on:2024-08-07Degree:MasterType:Thesis
Country:ChinaCandidate:M Y WangFull Text:PDF
GTID:2556307130956339Subject:legal
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With the deepening of comprehensive rule of law,China is constantly moving towards the goal of building a socialist rule of law system with Chinese characteristics and building a socialist rule of law country.During this period,the construction of the rule of law has achieved fruitful results,with various laws and regulations being introduced,including the updating of policy norms in the field of administrative law enforcement and the improvement of law enforcement activity rules.The report of the20 th National Congress of the Communist Party of China also emphasized the key areas that concern the vital interests of the people.Through legal and reasonable law enforcement and judicial processes,the people can feel fairness and justice,and experience the integration of legal and emotional principles.Furthermore,the revision of the new Administrative Penalty Law reflects China’s response to social development and reflection on the shortcomings exposed in administrative penalty practice.Here,the principle of "no punishment for first violation" stipulated in Article 33 has emerged and deserves attention."No punishment for the first violation" is a concrete reflection of the humanization and convenience of administrative punishment.Because it is a legal provision with Chinese characteristics made by China’s practice,and there is no completely consistent theoretical discussion outside the region,it highlights the importance and particularity of in-depth study of this provision,and avoids macro abstraction,which makes it difficult for administrative organs and their staff to grasp the law enforcement scale,Adapt it to the orderly operation of a rule of law society.Administration according to law is an important component of a rule of law country,indicating that administrative agencies should not only follow the requirements of statutory and legally formulated power to obtain and use power,but also implement the unity of power and responsibility,and be responsible for their own administrative actions.Similarly,the legal system for administrative penalties still follows the principle of "no punishment without explicit provisions of the law",which means that administrative penalties still operate within the legal framework,strictly controlling the operation of power,and safeguarding the value of human rights.Among them,the basic principle of administrative punishment is the combination of punishment and education,which includes sub principles such as prioritizing education,combining education with punishment,and using education as a substitute for punishment.This enriches the content of punishment and education,and clarifies the relationship between them.This principle embodies a people-oriented value orientation and has the function of guiding authorities to focus on education,protecting human rights,and preventing illegal crimes.It helps to ensure the effectiveness of public security management and better achieve the goal of maintaining social security order.From the perspective of protecting human rights and fundamental rights of citizens,there is a considerable tension between the frequency of the application of admonitory measures in administrative law enforcement practice and their potential impact on the rights and interests of individuals.The first chapter of this article sorts out the concept of "first violation without punishment" and distinguishes it from similar concepts in the criminal and administrative fields.Based on understanding the meaning,it explores the importance and necessity of setting up this provision to implement the principle of combining punishment and education,and to implement the humanistic spirit of flexible law enforcement.Due to its significant significance,this article separately introduces the constituent elements of "first violation without punishment" in Chapter 2,including first violation,minor harmful consequences,and timely correction.The third chapter specifically discusses the practical situation of "first violation without punishment",such as the number of legal documents issued and the improvement of relevant supporting measures.Currently,this regulation is mainly formulated by local governments as other normative documents,and has good implementation benefits for most minor illegal areas.In Chapter 4,the dilemma of this provision is discussed.This article concludes from several aspects such as purpose,institutional cost,actual enforcement,and exemption list that "not punishing the first violation" may lead to conflicts between public and private interests,increase institutional costs,lead to extreme enforcement effects,and question the legality of the exemption list.Therefore,in Chapter 5,this article proposes relevant measures in three directions: substantive rules,procedural rules,and related supporting measures.The vitality of the law lies in its implementation,and the authority of the law also lies in its implementation.It is necessary to accelerate the establishment of a scientific department,reasonable division of functions,unified power and responsibility,strict law enforcement,clean and efficient,and achieve economic and social benefits.It is also necessary to promote the healthy development of social governance as a rule of law government,and promote the better implementation of the "first violation without punishment" provisions in daily law enforcement activities,playing its substantive role.
Keywords/Search Tags:No punishment for the first violation, No penalty, First offence, Discretionary Power, Exemption List
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