Shenyang Right Of Free Judgment For Administrative Punishment Measures For The Implementation Of

Original Language Title: 沈阳市规范行政处罚自由裁量权实施办法

Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/dfzfgz/201110/20111000351837.shtml

Shenyang right of free judgment for administrative punishment measures for the implementation of (June 10, 2011 Shenyang Government 52nd times Executive Conference considered through June 18, 2011 Shenyang Government makes 26th, announced since August 1, 2011 up purposes) first article to specification administrative law enforcement behavior, guarantees administrative punishment implementation organ legal, and reasonable to exercise administrative punishment free CD volume right, maintenance citizens, and corporate and other organization of lawful rights and interests of, according to People's Republic of China administrative punishment method, about legal, and regulations provides, combined this city actual,

    These measures are formulated.

    Article discretion of administrative penalty mentioned in these measures refers to has the right to administrative penalties administrative bodies, authorized or entrusted with the implementation of administrative punishments of the Organization (hereinafter referred to as the implementation of administrative punishments), in the context of legal, illegal and given administrative punishment, what type of administrative punishment of independent judgment and what administrative penalties administrative power.

    Third, the implementation of administrative punishments, this organ to exercise the right of free judgment for administrative punishment, should comply with these measures. Fourth municipal, district and County (City) Legislative Affairs in the Department responsible for the administration of administrative penalty discretion of regulating and supervising.

Administrative punishment of agencies are responsible for the organ in charge of Legal Affairs administrative penalty discretion of regulating and supervising.

    Supervisory organs shall, in accordance with the relevant regulations, completes the implementation of administrative punishments supervision organs to exercise administrative discretion in punishment.

Article fifth exercise of discretion in administrative punishment, shall follow the lawful, fair and open, the punishment fit, the same principle of equal punishment.

    Exercise of the right of free judgment for administrative punishment, should persist in combining punishment with education and principles of education, education of citizens, legal persons and other organizations consciously abide by.

    Article sixth free judgment for administrative punishment standards and enforcement process should be open to the public, discretionary results involving State secrets, business secrets or personal privacy, allow public access.

    Seventh administrative penalty organ shall promptly take steps to correct violations may result in unlawful acts shall not be allowed, waiting for them to become illegal after the fact, the implementation of administrative punishments; shall not be allowed for imposition of administrative penalty violations persist.

    Eighth administrative relative person of the same offence and violation by implementing an administrative penalty authority to implement different laws, provisions of laws and regulations, imposed the implementation of administrative punishments administrative punishments, administrative penalties of the same kind may not be merged.

Nineth exercising administrative penalty discretion, should take the social harm illegal facts, characters, plot, and other factors, consider the following:

(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;

    (H) the laws, regulations and other factors prescribed by the regulations.

Tenth of municipal-level implementation of administrative punishment should be in accordance with the law, administrative penalties stipulated in laws and regulations of the Act, type, range, combined with the fact of the violation, the nature, circumstances, social factors such as degree, divide the discretionary order, developed the system of administrative penalty discretion standard.

Development of administrative penalty discretion standard, can refer to the related administrative penalties established by the higher authorities discretionary basis.

New laws, rules and regulations relating to administrative discretion in punishment, the implementation of administrative punishments shall be promulgated in the new laws, rules and regulations published in the 30th determine discretionary basis corresponding to the offence. Free judgment for administrative punishment benchmarks should be reported after review by the Municipal Department of Legal Affairs, in accordance with regulations to the public.

    To render its decision in reviewing discretionary basis, departments shall, in accordance with the municipal legal system requires the CD criteria of legality, rationality review.

11th discretion standard prescribes offences and penalties should be based on the order and divided into three or more discretion, order free judgment for administrative punishment of every type and scope of provisions.

    Set a variety of administrative penalties for the same violations committed, punishment applies to warning or smaller amounts of the fines heavier punishment in order to suspend and revoke licenses or licenses, the larger the amount of fines or confiscation of large amounts of illegal proceeds and illegal property. 12th on the laws, regulations and rules had a certain level of fine, discretionary basis should be subject to divide the range into a lesser punishment, punishment, heavy punishment in General.

The amount of the fine in accordance with the following criteria:

(A) penalty for a certain amount of times, 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 shall not be less than the Middle order;

(B) penalty for a certain amount of shall be divided between the maximum and minimum three or more order (maximum and minimum margin is four times more, shall divide the amount penalty order), General punishment in accordance with the order punishment, punishment should be less than the Middle order, a heavier punishment shall not be less 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, 20% the following to determine punishment in accordance with the highest penalty. District and County (City) people to the fines provided for in laws, rules and regulations, according to the region's economic, social and cultural circumstances, control the decisions of the upper limit of the fines.

    But relates to harm national security, public safety, human health, life and property safety, environmental protection, except for offences.

13th under any of the following circumstances shall be no administrative penalty:

(A) violations of persons under 14 years of age;

(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, regulations and rules provides no administrative penalties in other circumstances.

    Unless otherwise provided by laws and regulations, and violations is not discovered within two years, are no longer given administrative punishment.

14th under any of the following circumstances, it should be a lighter or mitigated administrative penalty in accordance with law:

(A) the offence who is 14 years younger than 18 years of age;

(B) fewer illegal income or the illegal property;

(C) the initiative to stop illegal acts;

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

(E) common offences who plays a secondary or auxiliary role;

(Vi) coercion by others engaged in illegal acts;

(VII) to tie in with the implementation of administrative punishments to investigate violations have meritorious;

(VIII) other circumstances as stipulated by laws, rules and regulations.

    Has no record of similar offences and offences without serious consequences, should be a statutory type of penalty or punishment on the basis of a mitigated punishment.

15th under any of the following circumstances, it shall be given a heavier punishment:

(A) play a major role in the common violations;

(B) the cumulative occurrence of two or more similar violations within two years or received administrative punishment;

(C) written by the implementation of administrative punishments authority after being ordered to stop or correct violations, continued implementation of illegal acts;

(D) serious prejudice to investigate violations committed by law enforcement officials;

(E) has a plot of coercion, deception or abetting violations;

(Vi) the informant, witness retaliation;

(VII) offences relating to national security, public safety, human health and safety, protection of life and property, with great harm to the society;

(H) the unlawful means and serious consequences;

    (IX) other circumstances as stipulated by laws, rules and regulations. 16th lighter or heavier punishment, should be in the type of legal punishment or penalty.

Mitigation of punishment should be in a type of legal punishment or punishments.

    Simultaneously with two or more lighter or mitigated circumstances, and does not have a heavier in cases where the minimum penalty amount or mitigated punishment shall be applied.

17th organ under the implementation of administrative punishments administrative punishments shall not be any of the following circumstances:

(A) the fact of the violation, the nature, circumstances and harm compared with parties subject to administrative penalties, abnormal light or defects;

(B) in the same or similar cases, the offences of the same or different parties are basically the same, but the different administrative penalty;

(C) shall be handled according to the same laws, regulations and rules in different cases, parties of the administrative offences and circumstances are the same, but subject to different administrative penalty;

(D) no administrative penalty according to law, or be given a lighter or mitigated administrative penalty, but abuse of administrative penalties or have not been given a lighter or mitigated administrative penalty;

    (E) other cases of abuse of discretion in administrative penalties. 18th the implementation of administrative punishments administrative punishments, shall in accordance with the laws, rules and regulations shall be ordered to immediately correct or rectify violations committed by the parties, within a time limit period not later than 15th.

    Except as otherwise provided by laws, rules and regulations. Article 19th General procedures administrative punishment case investigations, audits, decide to separate systems.

    Investigation and evidence collection, and put forward opinions by law enforcement personnel, in charge of legal affairs institutions legitimate, reasonable review, report it to the authorities in charge or brainstorm and made the decision under review.

    Article 20th after the end of law enforcement personnel to investigate, should be processed in a timely manner, and the application of administrative penalty discretion order clarification. 21st General procedures administrative punishment cases, the implementation of administrative punishments bodies responsible for Legal Affairs of the agencies should be on administrative penalty legality and rationality to audit and the audit opinion. After approval, materials related to the case and review comments should be reported to the Bureau review, or brainstorm and make a decision of administrative penalty.

    Without examination, shall not be submitted to the review or discussion.
22nd General procedures administrative punishment cases, any of the following circumstances, head of the organ shall be subject to administrative punishment decision after brainstorming:

(A) intends to impose larger fines, the parties concerned may apply for a hearing and did not apply;

(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.

    Group discussions should be recorded in detail.

    Article 23rd make written decision of administrative penalty, in addition to laws, rules and regulations set forth requirements of matters, relating to mitigation, should be lighter or heavier punishment the rationale and justification for clarification.

    24th the implementation of administrative punishments for law enforcement personnel of the law enforcement organs should time and place, the inspected object, illegal facts and law enforcement processes, law enforcement, law enforcement results on daily registration and production files for archiving for future reference.

Article 25th of summary proceedings, shall, within two working days from the date of punishment written decision of administrative penalty archives.

General procedures apply shall, within 5 working days from the closing date of filing.

    For hearing procedures, files should also include material of the hearing.

26th the implementation of administrative punishments should be in accordance with prescribed time limit will be imposed administrative penalty level people's Government legal departments and authorities at a higher level for the record statistics.

    Ordered to suspend or revoke the license or license, the larger the amount of fines or confiscation of large amounts of illegal proceeds, illegal property major administrative punishment decision, shall from the date of decision submitted to the people's Governments at the corresponding level in the 15th Legislative Affairs Department and authorities at a higher level for the record.

27th citizens, legal persons and other organizations on the administrative penalty 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; due to the implementation of administrative punishments administrative penalties unlawful damage has the right to demand compensation according to law.

    Citizens, legal persons and other organizations to the implementation of administrative punishments by petition, complaint or make recommendations, relevant departments shall, in accordance with the relevant regulations.

    28th the organ found that administrative penalties administrative penalty discretion improperly exercised, should be actively corrected.

29th of municipal, district and County (City) Government legal departments on the implementation of administrative punishments administrative monitoring penalty discretion in the following ways:

(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. 30th of municipal, district and County (City) Government legal departments on the implementation of administrative punishments organs supervise the exercise of the right of free judgment for administrative punishment.

Contents include:

(A) whether there were administrative penalty discretion standard to the public;

(B) whether according to establish and implement these measures include registration of enforcement of administrative penalty system, legal system, collective discussion system, hearings, and description of free systems, open systems, filing systems and other administrative discretion in punishment systems;

(C) whether comprehensive illegal facts and the nature and seriousness of hazard levels and social factors such as the exercise of discretion in administrative penalties;

(Iv) is made in accordance with laws, 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 the defence;

(Vi) compliance with statutory procedures;

(VII) other content that requires supervision according to law.

    Does not comply with the regulations, municipal, district and County (City) Legislative Affairs departments should make a rectification submissions, be corrected by the implementation of administrative punishments.

    31st organ specifications administrative penalties imposition of administrative penalty discretion, as an element of the implementation of administrative punishments according to law administration, administrative law enforcement responsibility system evaluation.

    Article 32nd administrative law enforcement personnel who violate these rules, abuse of discretion of administrative penalty, depending on the seriousness of municipal Legislative Affairs Department temporarily suspended, revoked the administrative law enforcement documents shall be given administrative sanctions by the relevant authorities constitutes a crime, criminal responsibility shall be investigated according to law. 33rd article this way as of August 1, 2011.