Changchun City to regulate administrative discretion in punishment measures for the implementation of
(November 29, 2012, Changchun City people's Government, the 57th Executive Meeting December 29, 2012, Changchun Municipal People's Government, the 43rd release come into force February 1, 2013) Chapter I General provisions
First in order to regulate the free judgment for administrative punishment, protection and to supervise the executive authorities the right to exercise discretion in administrative punishment, protect the legitimate rights and interests of citizens, legal persons and other organizations, in accordance with the People's Republic of China on administrative punishment law and the provisions of relevant laws and regulations, combined with the city's actual, these measures are formulated.
Second municipal administrative organs and laws and regulations authorize the organizations and entrusted with the implementation of administrative punishments of organizations (hereinafter referred to as the implementation of administrative punishments) exercise the right of free judgment for administrative punishment, should comply with these measures.
Article III of discretion of administrative penalty mentioned in these measures refers to the implementation of administrative punishments according to law when exercising their administrative punishment, laws, regulations, rules and regulations of the scope and range of autonomy and discretion.
Fourth of municipal or County (City) district people's Government Department responsible for the administration of the legal system within the discretion of administrative penalty norms and supervision.
The implementation of administrative punishments on organs of legal authorities responsible for the administrative penalty discretion specifications and oversight.
Article fifth exercise of discretion in administrative punishment, shall follow the lawful, fair, open and the penalty, the same principle of equal punishment.
Exercise of the right of free judgment for administrative punishment, should persist in combining education with punishment, education-oriented principles guided consciously abide by citizens, legal persons and other organizations.
Article sixth exercise of discretion in administrative punishment, should be based on the illegal facts, characters, plot, harm, and so on, and consider the following factors:
(A) the offence to a person's age and mental condition;
(B) the illegal level of subjective fault;
(C) whether there are two or more such violations committed within two years;
(D) violations of specific methods or tools;
(E) the number of illegal income or the illegal property;
(Vi) illegal damage and social impact on the specific objects;
(G) violations of the measures taken and the results;
(VIII) other factors prescribed by laws, rules and regulations.
Seventh organ under the implementation of administrative punishments should be taken to publishing information, reminders, advice, guidance or any other means, prevent the occurrence of violations.
Prohibit the implementation of administrative punishments take inducement, deception, coercion or other improper means, leading to citizens, legal persons or other organizations of violating the law and impose administrative penalties.
Chapter II discretionary basis
Article eighth implementation authorities shall, in accordance with the law on administrative punishments, regulations, regulation of administrative punishment, the type, amplitude, combined with the fact of the violation, the nature, circumstances, social factors such as degree, divide the discretionary order, free judgment for administrative punishment basis.
Free judgment for administrative punishment benchmarks developed shall be referred to the authorities at base of free judgment for administrative punishment.
New laws, regulations and rules relating to administrative discretion in punishment, the implementation of administrative punishments should be used in laws, regulations and rules within one year from the date of entry into force, make illegal free judgment for administrative punishment corresponding to the base.
Free judgment for administrative punishment benchmarks shall be subject to peer review of government legal departments in legality, rationality, and in accordance with the regulations to the public.
Nineth free judgment for administrative punishment benchmarks should be set out offences and penalties based on and divided into three or more discretionary order, order free judgment for administrative punishment of every type and scope of provisions.
Laws, rules and regulations setting a variety of administrative punishment for same offence, lighter punishment applies to warning or smaller amounts of fines heavier punishment applied to ordered to suspend or revoke the license or license, the larger the amount of fines or confiscation of large amounts of illegal proceeds and illegal property.
Tenth law, rules and regulations set certain fines, in the formulation of benchmarks of discretion, should circumstances in the range is divided into a lesser punishment, punishment, heavy punishment in General.
The amount of the fine in accordance with the following criteria:
(A) fines for multiples of a certain amount, should be at the highest multiples multiples and the lowest was divided between three or more order, punishment in accordance with the order punishment, punishment should be less than the Middle order, a heavier punishment should be higher than the Middle-order;
(B) penalty for a certain amount of shall be divided between the maximum and minimum amounts more than three orders (the maximum amount is four times more than the minimum, should be broken down by multiple punishment orders), General punishment in accordance with the order punishment, punishment should be less than the Middle order, a heavier punishment should be higher than the Middle-order;
(C) only stipulates that the amount of the maximum fine amount no minimum penalty General penalty determined in accordance with 40% to 60% the highest penalty, 40% the following to determine punishment in accordance with the highest penalty, a heavier punishment in accordance with 60% of the maximum fine amount determined above.
(D) where regulations or fines that are not divided into discretionary range, the amount of the fine shall be in accordance with the law, rules and regulations the penalties set forth in the standard us time following implementation.
11th under any of the following circumstances, no administrative penalty according to law:
(A) the law-under 14 years of age;
(B) the mental patient is unable to recognize or control his own behavior violations;
(C) the offence minor and correct, no harmful consequences;
(D) more than limitation of legal accountability for violations;
(E) no administrative penalty according to law.
12th under any of the following circumstances, be given a lighter or mitigated punishment according to law:
(A) the offence who is 14 years younger than 18 years of age;
(Ii) by coercion, deception, abetting violations of others;
(C) the property involved or the illegal income is less;
(D) the initiative to eliminate or mitigate harmful consequences for offences;
(V) collaboration with meritorious executive authorities investigate violations committed;
(F) shall be given a lighter or mitigated punishment according to law.
13th under any of the following circumstances, it shall be given a heavier punishment in accordance with law:
(A) the concealment, destruction of illegal evidence;
(B) impede law enforcement officers investigate and deal with illegal, violent resistance method does not constitute a crime;
(C) do not scatter, continued illegal acts;
(D) offences relating to national security, public safety, environmental protection and directly related to human health, the safety of life and property;
(E) an offence aggravated, cause serious harmful consequences;
(F) the coerced, induce others or instigate minors to commit illegal acts;
(VII) play a major role in jointly committed the offence;
(VIII) repeatedly committed offences, repeat offenders;
(IX) in time of public emergency, committed offences.
Article 14th lighter or heavier punishment, should within the type of legal punishment or penalty mitigated punishment should be in a type of legal punishment or punishments.
Chapter three discretionary implementation 15th when the organ under the implementation of administrative punishments administrative punishments should be based on the provisions of law and rules and regulations to educate the parties, order the party to immediately correct or rectify violations.
Except otherwise prescribed by laws, rules and regulations, within a time limit may not exceed the 15th.
16th General procedures administrative punishment cases, investigation and evidence collection, by the implementation of administrative punishments organ put forward opinions, and the application of administrative penalty discretion order clarification, after examination by the legal legitimacy, rationality, and reported to the head of the organ review of administrative punishment or brainstorming, making the decision.
17th under any of the following circumstances, must pass through the heads of collective discussion decision:
(A) intends to impose larger fines;
(B) intends to impose a order to suspend or revoke the license or license;
(C) the proposed exemption from punishment according to law, a mitigated punishment or be punished;
(D) the implementation of hearing;
(E) the implementation of administrative punishments considered other cases to be decided collectively.
Shall make a detailed record of the collective discussions, and mount archives of administrative punishment. Article 18th impose administrative penalties, shall guarantee the party's right to be heard, the right to defence.
To meet the statutory conditions for the hearing, the Parties apply, it shall organize the hearing. Article 19th before making a decision of administrative penalty, it shall inform the party intends to make a decision of administrative penalty and facts, grounds, and basis.
For the parties ' statements or representations of fact, reason and evidence, should be reviewed.
Article 20th make written decision of administrative penalty, in addition to set forth the requirements of the laws, regulations and rules issues, should also be on whether to adopt the party's views to be heard, and the lighter or heavier or mitigating the rationale and justification for them.
Article 21st unless otherwise prescribed by laws, regulations, rules, procedure of administrative punishment, it shall make a decision of administrative penalty within 60 days from the date of filing, in special circumstances, approved by the Bureau may be appropriately extended, extended periods of not more than 30th.
Before the implementation of administrative punishments administrative punishment decision, legally required notice, hearing, testing, inspection, and quarantine or identification, not counting the time required within the period specified in the preceding paragraph.
22nd the implementation of administrative punishments law enforcement officers and one of the following interest by the parties, it shall be avoided:
(A) a party or a close relative of the involved;
(B) for the victims of offences, the beneficiary or their close relatives;
(C) other relationships with the parties involved, could affect the impartial handling of the case.
Article 23rd of summary proceedings, shall, within two working days from the date of punishment written decision of administrative penalty archives; general procedures apply shall, within five working days from the closing date of filing.
Administrative punishment case file material should include the volume list, filing form, investigative records and related evidence, investigation and treatment advice, administrative penalty notice, administrative punishment decision letter, delivery receipts, and closed form and other materials.
For hearing procedures, files shall include a hearing materials.
24th implementing administrative penalty authority shall, in the first month of each quarter of the 10th administrative punishment cases statistics to be implemented last quarter, reported to the people's Government at the Department of Legal Affairs.
Order to suspend and revoke licenses or licenses, impose larger fines and the confiscation of large amounts of illegal proceeds, illegal property major administrative punishment decision, shall from the date of decision submitted to the Legislative Affairs Department at the same level in the 15th.
25th implementation authorities shall regularly carry out administrative penalties administrative penalty case evaluation to check, whether the specific facts of the case clearly, whether the evidence is conclusive and the legality of the program, the applicable law is correct, whether the discretion appropriate, whether the text files comments on the norms of investigations.
26th the implementation of administrative punishments should be a common crime, combined with the actual situation of the sector, establish case base as a reference standard of administrative punishment, law applicable to ensure that similar cases are basically the same.
27th implementation the implementation of administrative punishments administrative punishments should be incorporated into electronic management system in a timely manner, by the city and County (City) district people's Government legal supervision and inspection departments in real time. 28th to guarantee fully the right of citizens, legal persons or other organizations.
Citizens, legal persons or other organizations, administrative punishment shall have the right, the right to be heard; not satisfied with the administrative penalty, shall have the right to apply for administrative reconsideration or bring an administrative suit; administrative penalties by administrative authority in contravention of the damage has the right to compensation in accordance with law.
Fourth chapter, supervision and assessment
Article 29th organ found administrative penalties administrative penalty discretion improperly exercised, should be actively corrected.
30th of municipal or County (City) district people's Government legal departments on the implementation of administrative punishments body supervise the exercise of the right of free judgment for administrative punishment includes:
(A) through the administrative review review of legality and rationality of administrative penalty;
(B) carry out administrative punishment case comments looks up;
(C) implement daily supervision and examination or special inspection of discretion of administrative penalty;
(D) receive complaints from the masses to the administrative punishment cases, reports;
(E) record review of the major administrative punishment decision implementation.
31st of municipal or County (City) district people's Government legal departments on the implementation of administrative punishments body supervise the exercise of the right of free judgment for administrative punishment, and should include the following:
(A) whether administrative penalties discretionary basis and to the public;
(B) is created in accordance with this approach and the implementation of administrative punishments law enforcement registration system, legal system, system of collective discussion and hearing system, description of free systems, open systems, significant discretion in administrative penalties such as penalties filing system supporting systems;
(C) it considers illegal facts and the nature and seriousness of hazard levels and social factors such as the exercise of discretion in administrative penalties;
(D) in accordance with the provisions of law and rules and regulations, decisions of a lighter or mitigated administrative penalty or not, and described in a written decision of administrative penalty;
(E) whether to listen to the statements of the parties and representation;
(Vi) compliance with statutory procedures;
(VII) other content that requires supervision according to law.
Violation of the provisions of the preceding paragraph, the city and County (City) district people's Government the Department of Legal Affairs shall make a rectification opinions, be corrected by the implementation of administrative punishments.
32nd organ under the implementation of administrative punishments shall be annually on the exercise of the right of free judgment for administrative punishment in this sector to be evaluated.
City, County (City) district people's Government will free judgment for administrative punishment include annual administration review of the implementation of the right.
Article 33rd for violations of these rules, by the city and County (City) district people's Government of Jilin province, Department of Legal Affairs, in accordance with the administrative law enforcement supervision measures of Changchun City, and the relevant provisions of the administrative law enforcement accountability measures for processing.
The fifth chapter by-laws 34th article of the rules take effect on February 1, 2013.