Provisions Regulate Administrative Discretion In Punishment Of Gansu Province

Original Language Title: 甘肃省规范行政处罚自由裁量权规定

Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/dfzfgz/201212/20121200379299.shtml

Provisions regulate administrative discretion in punishment of Gansu province (October 25, 2012 Gansu Province Government 116th times Executive Conference considered through October 30, 2012 Gansu Province Government makes 94th, announced since January 1, 2013 up purposes) first article to specification administrative punishment free CD volume right of exercise, ensure law, and reasonable administrative, maintenance citizens, and corporate and other organization of lawful rights and interests of, according to People's Republic of China administrative punishment method, and Gansu province administrative law enforcement supervision Ordinance and the other related provides, combined this province actual,

    These provisions are formulated.

    Provisions of this article apply to the implementation of administrative punishments within their administrative areas in the province to exercise administrative discretion in punishment of the specification and supervision.

   Article III the implementation of administrative punishments in these rules refers to the province has the right to administrative penalties administrative authority authorizes the imposition of administrative penalties and laws and regulations of the organization.

    Discretion of administrative penalty mentioned in these regulations refers to the implementation of administrative punishments in laws, within the competence of administrative penalties stipulated in laws and regulations, citizens, legal persons or other organization acts contrary to the Administration to determine whether administrative penalties, what type of administrative punishment and what type of discretion of administrative penalty authority.

   Fourth organ exercising administrative penalty of administrative penalty discretion shall comply with the following principles: (A) the principle of legality. Exercise of the right of free judgment for administrative punishment shall be according to the laws, regulations and rules. Statutory authority, type and range.

Division of administrative penalty order shall not exceed the statutory rate. (B) the principle of reasonableness. Exercise of the right of free judgment for administrative punishment, should be based on the facts as the basis, purpose in accordance with the law, to exclude irrelevant interferences. Illegal facts and the nature, circumstances and adverse social consequences of the same or similar violations, applicable legal basis and types of punishment, should be basically the same. Apply the measures and means necessary and appropriate.

   Administrative organization for law enforcement administrative purposes can take many forms, should be adopted as far as possible without loss or loss of administrative relative person. (C) the principle of openness. The basis for exercise of the right of free judgment for administrative punishment, reasons, application rules and discretionary basis and the results should be made public. 

   Exercise of discretion in administrative punishment should pay attention to listen to the views of the Administration, ensure administrative person or an interested person's right, to participate and the right to relief. (D) the principle of combining punishment with education.

    Exercise of the right of free judgment for administrative punishment, should be taught first, after the first penalty, persist in combining punishment with education, education of citizens, legal persons or other organizations consciously abide by.

   Fifth people's Governments and their law enforcement departments at and above the county level shall be in accordance with the laws and regulations and basic principles of the administrative law enforcement,, this system can be enacted exercise of discretion in administrative penalties applicable rules.

    Applicable rules should include basic principles of exercise of discretion of administrative penalty, the scope, application procedures, safeguards and discretionary basis under institutional arrangements, etc.

Sixth regulation of administrative punishment right of discretion of administrative penalty discretion reference system.

    Executive administrative punishments should be laws, regulations or rules provide for discretion of the types and range of penalties, in accordance with the principle of the punishment fit the, divided into several discretionary order, each order provides a certain amount of penalty standards, to ensure that the penalties and violations of adapt, the nature, circumstances and social harm.

Article seventh provincial implementation of administrative punishments should be in laws, regulations, rules and regulations of administrative penalties within the scope, type, and combined with practical work, according to the requirements, taking into account statutory and discretionary discretionary of discretionary factors factors, free judgment for administrative punishment order, specific standards and conditions as a basis for exercising the right of free judgment for administrative punishment.

    People's Governments and their law enforcement departments at and above the county level locally, can be combined with the actual situation of the sector, to the provincial administrative penalties stipulated in the implementation of administrative punishments discretionary based on benchmark to further refine the discretionary criteria.

Article eighth right of free judgment for administrative punishment for rules and establish, change or repeal of administrative penalty discretion benchmarks, should be discussed by the leadership collective of the executive decisions, to the public, and the procedures prescribed by regulatory document management record.

    Organizations entrusted with the implementation of administrative punishments, its benchmark of discretion of administrative penalty formulation, modification and abolition of the entrusting administrative organ to decide. Nineth organ under the implementation of administrative punishments shall be in accordance with the law, changes in legislation, regulations or enforcement situation, replenish, revise or improve the Department's discretionary baseline system in administrative punishment.

    Supplement, amend or improve the text should be released back to the community in a timely manner.

   Article tenth of the parties to 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.

   11th under any of the following circumstances, it should be a lighter or mitigated administrative penalty in accordance with law:

   (A) illegal acts 14 years younger than 18 years of age;

   (B) coercion, lured by others to implement illegal acts;

   (C) the property involved or the illegal income is less;

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

   (E) cooperate with law enforcement authorities investigating violations has performed meritorious service;

    (F) shall be given a lighter or mitigated punishment according to law.

12th under any of the following circumstances, it shall be given a heavier administrative punishment:

(A) conceal, destroy 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) involving personal safety and property security, public safety, social stability and environmental protection, economic order resulting in harmful consequences, and aggravated;

(E) the coerced, induce others or instigate minors to commit illegal acts;

(Vi) play a major role in jointly committed the offence;

(VII) repeatedly committed offences, repeat offenders;

(H) in case of unexpected public incidents committed offences;

(IX) the informant, witness retaliation;

    (J) the other shall be given a heavier punishment according to law. 13th organ under the implementation of administrative punishments make no, lighter, lighter or heavier administrative punishment decision, shall file in the record of the discussions and the decision on administrative penalty justified.

    And listen to recorded statements, representations by the parties.

    14th people's Governments above the county level and a legal working body implementing, administrative penalty organs shall, in accordance with the relevant provisions of the administrative law enforcement supervision and regulation in Gansu province, through administrative law enforcement supervision and responsibility system of administrative enforcement evaluation by administrative law enforcement files, normative documents for the record review, comments looks up, administrative law enforcement to report complaints, administrative reconsideration on free judgment for administrative punishment in the form of the right to supervise and inspect the work.

    15th people's Governments above the county level and Office of Legislative Affairs and the implementation of administrative punishments should be normative administrative penalty discretion into responsibility system of administrative enforcement evaluation and the scope of administrative law enforcement responsibility.

    16th administrative penalty organ decided to apply the hearing procedure of administrative punishment or on the decision with article 12th of heavier administrative punishment, shall be implemented by the administrative penalty authority leadership decided collectively, within 30th of and make the penalty decision and the main documentary evidence submitted to the legal work of the Government filings. 17th article administrative punishment implementation organ not strictly implementation this provides, administrative law enforcement personnel abuse administrative punishment free CD volume right of, County above Government and legal work institutions, and administrative punishment implementation organ in accordance with Gansu province administrative law enforcement supervision Ordinance related provides, made give informed criticism, ordered deadline corrected, and temporarily buckle or recovered law enforcement documents, processing; plot serious of, by about sector according to Gansu province administrative fault responsibility held approach, about provides held responsibility

    ; Suspected criminal judicial organs according to law. 18th article of the regulations come into force on January 1, 2013.