Shandong Province, Regulation Of Administrative Penalty Discretion Approach

Original Language Title: 山东省规范行政处罚裁量权办法

Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/dfzfgz/201506/20150600399307.shtml

Shandong province, regulation of administrative penalty discretion approach

    (November 22, 2013 Shandong provincial government 20th times Executive Conference through January 29, 2013 Shandong Province Government makes No. 269, announced since announced of day up purposes) first article to specification administrative punishment behavior, guarantee administrative punishment CD volume right of right exercise, maintenance social fair justice, protection citizens, and corporate and other organization of lawful rights and interests of, according to People's Republic of China administrative punishment method and about legal, and regulations, combined this province actual, developed this approach.

The second administrative penalty discretion in these measures refers to the implementation of administrative punishments according to law when exercising their administrative punishments, administrative penalties stipulated in laws, regulations and rules types and range within, whether it is given administrative punishment, what the penalties and what type of discretionary administrative autonomy and the right to dispose of the punishment.

    The implementation of administrative punishments in these measures refers to has the right to administrative penalties administrative organs and laws and regulations authorized to administer public affairs functions of the organization.

    Article in the administrative area of the province at all levels the implementation of administrative punishments administrative punishments discretionary basis, the exercise of discretion of administrative penalty shall abide by these measures.

    Article fourth code administrative penalty discretion, should follow lawful, fair, open, penalties, the principle of combining punishment with education.

    Fifth people's Governments above the county level shall strengthen the regulation of administrative penalty discretion in work organization and leadership, regulation of administrative penalty discretion into the administration by law of the people's Governments at the corresponding level evaluation system.

Sixth above the county level shall be responsible for the Legal Affairs Department (hereinafter referred to as the Government legal departments) under the leadership of the people's Governments at the corresponding level, which is responsible for the regulation of administrative penalty discretion in the administrative area of organization, guidance, coordination and supervision of work.

Level organ responsible for regulating administrative penalties administrative penalty discretion in implementation.

    Supervisory organs at all levels imposed on the exercise of discretion of administrative penalty in accordance with law on administrative supervision.

Article seventh provincial implementation of administrative punishments should be in laws, regulations, regulatory provisions within the scope of the types and range of administrative penalty, according to the province's economic and social development and the practical work of the system, considering the statutory discretion and the discretion of discretionary factors, development of this sector, the system of administrative penalty discretion standard, as a basis for exercise of discretion of administrative penalty.

    Superior organ has developed a clear and concrete administrative penalties administrative penalty discretion standard, subordinate the implementation of administrative punishments should be executed; superior organ on administrative punishments administrative punishments discretionary basis only provides for the principle or explicitly subordinate the implementation of administrative punishments to make, the lower the implementation authority shall, in accordance with the measures of administrative penalty provisions, specific administrative penalty discretion standard.

    Eighth baseline should include violations of administrative penalty discretion, statutory basis, adjudication order, conditions and specific standards.

Nineth formulation of administrative penalty discretion standard, shall meet the following requirements:

(A) laws, regulations, rules and regulations can choose whether or not to impose administrative penalties, it should be made clear whether the specific judgment for administrative punishment criteria and applicable conditions;

(B) the laws, rules and regulations can choose the types of administrative penalty, it should be made clear for different kinds of punishment of specific administrative standards and applicable conditions;

(C) laws, regulations, rules and regulations can select a range of administrative penalty, should be based on illegal facts and the nature, circumstances, social harm and other factors to determine the specific discretion criteria and applicable conditions;

(D) the laws, regulations, rules and regulations can be fined and may be administrative penalties, it should be made clear or specific judgment for administrative punishment criteria and applicable conditions;

    (E) the law should make it clear to other matters.

Tenth administrative punishments discretionary basis, should be carried out in accordance with the following procedure:

(A) sort out administrative penalty discretion basis;

(B) collation, analysis of administrative punishment cases provide the basis for refining, quantifying administrative penalty discretion;

(C) refining, quantifying administrative penalty discretion, develop administrative punishments discretionary basis;

    (D) by the organ in charge of administrative penalty decided collectively, and in accordance with normative documents development program review after the registration to the public implementation.

11th organ under the implementation of administrative punishments shall be in accordance with the law, changes in legislation, regulations or administrative law enforcement situation, replenish, revision and perfection of administrative penalty discretion standard in this sector.

    Supplements, amendments and improvement of administrative penalty discretion standard should be released back to the community.

    12th the implementation of administrative punishments administrative punishments discretionary, should be strictly in accordance with the public administrative penalty discretion standard implementation of, and compliance with statutory procedures, safeguards the legal rights of administrative relative person.

13th provincial organ of administrative penalty shall be in accordance with the laws, regulations, rules and fundamental principles of administrative law enforcement and enactment of this sector, the system of administrative penalty discretion in the application of rules.

    Applicable rules shall include the exercise of discretion of administrative penalty principles, scope of application, application procedures and safeguards.

14th Party, one of the following circumstances, shall not be penalized according to law:

(A) under 14 years of age who committed offences;

(B) the mentally ill people are unable to recognize or control his actions when illegal acts;

(C) the offence minor and correct, no harmful consequences;

(D) the laws, rules and regulations shall not be penalized in other circumstances. Violations is not discovered within 2 years, no longer be given administrative punishment.

    Except as otherwise provided by law.

15th Party, one of the following circumstances shall be shall be given a lighter or mitigated punishment:

(A) is 14 years of age under 18 years of age who committed offences;

(B) the initiative to eliminate or mitigate harmful consequences for offences;

(C) administered by others, coerces illegal acts;

(D) facilitate the implementation of administrative penalty organs investigated and dealt with offences has performed meritorious service;

    (E) the laws, regulations and other rules provide for a lighter or mitigated punishment.

16th party, one of the following circumstances, it shall be given a heavier punishment:

(A) disturbing public order, public security, violation of personal rights, property rights, obstructing the administration of serious circumstances, does not constitute a crime;

(B) natural disasters, accidents, public health or social security implemented in emergency situations, such as illegal acts;

(C) the implementation of administrative punishments after the organs have been made shall be ordered to stop or be ordered to correct the violations, continued illegal acts;

(D) obstructing a law enforcement officer to investigate and punish illegal acts;

(E) the falsification, concealment, destruction of illegal evidence;

(F) repeatedly and have received administrative punishments for offences;

(VII) played an important role in the common offences;

(VIII) instigates, coerces, coerces others to commit illegal acts;

(IX) the informant, witness retaliation;

    (J) the laws, regulations or rules provide for heavier punishment of other cases.

    17th implementing administrative penalty organs to exercise the discretion of administrative penalty shall be in conformity with legal purposes exclude irrelevant factors, measures and instruments should be taken necessary and appropriate; on fact, nature and seriousness of harm, social and other factors in the same or similar offences, the penalties applied by the types and range should be basically the same.

    18th the implementation of administrative punishments administrative purposes can be used in many ways, no harm to interests of the administrative work should be used or less damaging ways, and educate and guide consciously abide by citizens, legal persons and other organizations.

    19th the implementation of administrative punishments shall be in accordance with the law, regulations, provisions of the regulations, establish and improve the avoidance, open, informed, hearings process, duration, justify system; serious or complex cases the exercise of discretion of administrative penalty should be decided collectively by the organ in charge of administrative punishment.

    20th organ under the implementation of administrative punishments administrative penalty decisions are made, should be explained in the written decision of administrative penalty penalties factual basis, legal basis, discretionary basis where applicable as well as statements of the parties and defend themselves whether or not to accept the content, enhance said.

    21st party believes that the implementation of administrative punishments agencies illegal or improper exercise of the power of administrative penalty, may apply for administrative reconsideration or bring an administrative action or to supervisory organs at the same level in the implementation of administrative punishment complaint or accusation.

22nd people's Governments above the county level shall specification for establishing and perfecting the supervision mechanism of administrative penalty discretion, through law enforcement inspection, file comments looks up, enforcement evaluation by means of strengthening the implementation of administrative punishments within their respective administrative areas organs exercising supervision and inspection of administrative penalty discretion.

    Legislative Affairs Department of the people's Governments above the county level shall, in conjunction with supervisory organs, administrative punishments discretionary basis in matters of administrative punishment dynamic management systems and network operating system of administrative punishment, the use of information technology to supervise the administrative penalty.

    23rd organ made a major administrative penalties administrative penalty decisions shall be submitted to the Legislative Affairs Department for the record the same level.

    Article 24th organ found in the exercise of administrative penalty discretion of administrative penalty illegal or inappropriate, and should be proactive and timely redress; the implementation of administrative punishments do not correct themselves, by the people's Governments at the corresponding level or by the implementation of administrative punishments in accordance with the relevant laws and regulations, the provisions of regulation, order deadlines to correct or revoked.

    25th administrative law enforcement officers in violation of these regulations, the abuse of discretion of administrative penalty, given criticism by their units, and documents issued by administrative law enforcement organs to recover its administrative law enforcement documents, cancelled its law enforcement qualifications; the circumstances are serious, shall be subject to punishment.

26th article violates these rules, the implementation of administrative punishments of any of the following circumstances, be ordered by the Government legal departments at correct within; it fails to draw this level shall be criticized, and recommend to the supervisory organ directly responsible shall be investigated for the managers and other persons directly responsible of administrative responsibility:

(A) formulation of administrative penalty discretion standard;

(B) the administrative penalty discretion standard was not announced to the public;
(C) abuse of discretion of administrative penalty.

    27th major city approved by the State Council enacted local regulations, regulations relating to administrative penalty discretion, by the larger, implementation of administrative punishment in accordance with the provisions of these measures be standardized.

    Vertical management of countries the implementation of administrative punishments, administrative punishments discretionary basis, the exercise of discretion of administrative penalty, in accordance with the measures implemented.

28th organization entrusted with the implementation of administrative punishments according to law, administrative penalty discretion standard developed and published by the entrusting administrative organ responsible for.

    The implementation of administrative punishments should be entrusted with implementing organization of administrative penalties administrative penalty discretion for guidance and supervision.

29th these measures come into force on the date of promulgation. These measures before the implementation of administrative punishments administrative penalties to make discretionary basis inconsistent with this approach, should be revised in accordance with this approach; no administrative penalty discretion standard was developed, and published should be enacted by December 31, 2013.