Be cautious in using top tier fines and abide by the bottom line of law enforcement


In order to implement the decisions and deployments of the 20th National Congress of the Communist Party of China, maintain a fair competitive market order, optimize the business environment, and promote high-quality development, the State Council recently issued the Guiding Opinions on Further Regulating and Supervising the Setting and Implementation of Fines (hereinafter referred to as the "Opinions"), which for the first time comprehensively and systematically regulates the setting and implementation of fines in administrative regulations and rules. The Opinion clearly states that the implementation of fines should be strictly regulated. No administrative agency shall arbitrarily impose a maximum or high fine, lower the threshold for identifying illegal acts, or expand the scope of illegal acts. The Opinion has attracted high attention and heated discussion in public opinion, and the requirement that no administrative agency should arbitrarily impose maximum fines or high fines has pointed to some misunderstandings that law enforcement departments and personnel are prone to in their daily law enforcement supervision work. It has pointed to the pain points of enterprises, the public, and other entities when they are parties to administrative penalty cases, thus causing greater reactions in the public opinion field. Administrative regulations and rules have a large number and cover a wide range of fields, making them an important basis for administrative supervision. Administrative regulations and rules have established a large number of fine penalties, among which a considerable number of fine penalties have flexible space, with upper and lower limits on the amount or multiple of fines. For example, Article 63 of the Road Transport Regulations of the People's Republic of China stipulates that those who violate the provisions of this regulation, engage in road transport operations without obtaining a road transport operation license, Ordered by the transportation department of the local people's government at or above the county level to cease operations; If there are illegal gains, the illegal gains shall be confiscated and a fine of 2 to 10 times the illegal gains shall be imposed; If there are no illegal gains or the illegal gains are less than 20000 yuan, a fine of not less than 30000 yuan but not more than 100000 yuan shall be imposed. The elastic space of fine punishment is the discretion space of law enforcement officers. In law enforcement practice, some law enforcement departments, in order to cope with public opinion pressure, demonstrate their attention to regulatory work in related fields, and their determination to enforce illegal acts strictly, or for other purposes, often resort to heavy fines or high fines. In fact, some top tier or high fines, although appearing very severe and deterrent, violate the principle of excessive punishment and are clearly biased, belonging to non-standard and irrational law enforcement. Within the discretionary scope of fine punishment, it is divided into three levels of discretion: lighter punishment (including minimum punishment), general punishment, and heavier punishment (including maximum punishment), each level of discretion corresponds to some illegal situations. According to the rules of discretion, law enforcement officers should take the appropriate level of discretion and choose the appropriate level of discretion for the illegal behavior. This also means that only when the illegal behavior meets the criteria of multiple occurrences within a certain period of time, a large amount of illegal money, serious harmful consequences, and severe circumstances, law enforcement officers can choose a heavier punishment level. If they choose the top punishment level in the heavier punishment level, they need to carefully evaluate and grasp the severity of the illegal behavior, and cannot ignore the illegal situation, slap their heads, and enforce the law with enthusiasm, Make arbitrary decisions on top fines or high fines. The prohibition of arbitrarily imposing maximum or high fines is a reaffirmation of the rational bottom line of administrative penalties, which is consistent with the Opinion

Edit:Zhoushu Responsible editor:Yi Yi


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