Qinghai province, regulation of administrative penalty discretion approach
(November 28, 2012 the 109th meeting of the people's Government of Qinghai province considered by December 10, 2012, the 94th release of Qinghai province as of January 1, 2013) first to standardize the administrative penalty discretion, promoting administration according to law, 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 facts of the province, these measures are formulated.
The second administrative penalty discretion in these measures refers to the implementation of administrative punishments according to the provisions of the laws, regulations and rules, considering facts of violations by the parties, nature, circumstances, social factors such as degree, deciding whether to impose administrative penalties, what type of administrative punishment and administrative punishment of the permission.
The implementation of administrative punishments including administrative punishment power administrative organ and authorized by laws and regulations to administer public affairs organization, and entrusts the implementation of administrative punishments by administrative organs tissues.
Article III of the province at all levels the implementation of administrative punishments administrative punishments discretionary basis, the exercise of discretion of administrative penalty shall be governed by this approach and guided by the following principles:
(A) adhere to fair and open;
(B) in the context of statutory acts, the types and range of implementation;
(C) combination of punishment and education;
(D) the equal treatment of citizens, legal persons or other organizations, to exclude irrelevant factors;
(E) the fact, nature and seriousness of the violations and the harm.
Fourth in the people's Governments above the county level shall strengthen the administrative norms and organizational leadership of the exercise of discretion of administrative penalty; its legal working body responsible for regulating and the exercise of discretion of administrative penalty guidance and oversight of the work.
Level organ responsible for regulating administrative penalties administrative penalty discretion in work organizations.
Supervisory organs above the county level people's Government imposed on the exercise of discretion of administrative penalty in accordance with law on administrative supervision. Article fifth benchmark of punishment administrative system.
Administrative penalty discretionary basis should be included in accordance with standard three, offences and penalties. Provincial implementation of administrative punishments shall be formulated in accordance with the measures in this sector, the system of administrative penalty discretion benchmarks, and submitted to the Legal Affairs Office of the provincial government to review the record.
Implementing of administrative penalty organs at higher levels have clearly established a specific administrative penalty discretion standard, subordinate the implementation of administrative punishments should be executed; superiors the implementation of administrative punishments provided for, in principle, lower implementation of administrative penalty authority shall, in accordance with its provisions, in accordance with the measures set clear and specific administrative punishments discretionary basis, and in accordance with the regulations for the record.
Sixth organ under the implementation of administrative punishments administrative punishments discretionary basis should be discussed by the Executive Heads of the collective decision, and announced to the public before implementation.
The legal basis for administrative penalty changing or discretionary basis of administrative punishment does not fit the actual situation, the implementation of administrative punishments shall, according to legal rights and procedures revised administrative penalty discretion standard, and required audit record after release to the community.
Seventh administrative penalty organ within the statutory authority in drafting local regulations, the Government draft regulations should be clear of administrative penalty discretion range.
Eighth organ under the implementation of administrative punishments shall be on the following laws, rules and regulations administrative penalties stipulated in principle be clearly formulated administrative penalty discretion standard:
(A) for the same violations can choose the types of administrative penalty shall list select the specific types of administrative penalty;
(B) provide for administrative penalties for same violations should correspond to set out specific standards of administrative penalties;
(C) violations can also may be imposed, and facilitates the development of standard administrative punishment should correspond to cite the single administrative penalties, and standards;
(D) the law should make it clear to other matters.
The Nineth under any of the following circumstances, no administrative penalty according to law:
(A) under the age of 14 who are in violation of;
(B) the mental patient is unable to recognize or control his own behavior violations occurred;
(C) the offence minor and correct, no harmful consequences;
(D) the offence is not discovered within two years, except as otherwise provided by law;
(E) other circumstances that no administrative penalty according to law.
Tenth under any of the following circumstances, be given a lighter or mitigated administrative penalty in accordance with law:
(A) the person who has reached the age of 14 to 18 years of age are in violation of;
(B) the initiative to eliminate or mitigate harmful consequences for offences;
(C) stress of wrongdoing by others;
(D) common offences who plays a secondary or auxiliary role;
(E) the property involved or the illegal income is less;
(F) collaboration with meritorious executive authorities investigate violations committed;
(VII) other circumstances that shall be given a lighter or mitigated administrative penalty in accordance with law.
11th under any of the following circumstances, be heavier administrative punishment in accordance with law:
(A) play a major role in the common violations;
(B) the falsification, concealment, destruction of illegal evidence;
(C) a serious impediment to investigate violations committed by law enforcement officials;
(D) after the violations were investigated and dealt with, and continuation of illegal acts;
(E) the repeated occurrence of similar violations and have received administrative punishment;
(Vi) coercing, enticing or abet others to commit illegal acts;
(VII) the informant, witness retaliation;
(H) natural disasters, accidents, public health or social security implemented in emergency situations, such as illegal acts;
(IX) other heavier administrative punishment in accordance with law.
12th the implementation of administrative punishments administrative punishments, must not occur in the following situations:
(A) do not perform administrative penalty discretion standard, not theorem random reduction or an increase in administrative punishment, or maximum administrative penalties provided by law;
(B) the violation of the legal procedure of administrative penalty;
(C) administrative penalty according to law without punishment, sanctions or no administrative penalty according to law;
(Iv) the illegal circumstances and factors were the same or similar offences, the decision on administrative penalty made an apparent inconsistency;
(E) allow violations and impose administrative penalties or allowing violations persist after the imposition of administrative penalty;
(Vi) adopt unfair means, inducing illegal and impose administrative penalties on the parties;
(VII) other circumstances that should be banned by law. 13th organ under the implementation of administrative punishments should be according to the laws, rules and regulations, establish and improve the avoidance, open, informed, hearing, duration, explanation and other procedures. Establishing and perfecting the functions of administrative penalty system.
Imposition of administrative penalty discretion in cases of serious or complex, should be determined by the Executive Heads decided collectively.
14th administrative penalty before making a decision on administrative penalty organ, must listen to the statements of the parties, representations of facts, reasons and evidence submitted by the parties, should be reviewed; establishment of the facts, reasons and evidence submitted by the parties, should be adopted.
Implementation of administrative punishments shall not be a party to plead and aggravating.
15th article Party think administrative punishment implementation organ illegal or improper exercise administrative punishment CD volume right, can to this level Government monitored organ and made administrative punishment decided of administrative punishment implementation organ of superior organ complaints or report; accepted complaints or report of organ should law set terms on complaints or report of matters for survey processing, and will survey processing results in 30 a days within told complaints people, and report people.
Party refuses to accept the decision on administrative penalty, the right to apply for administrative reconsideration or bring an administrative suit. 16th people's Governments above the county level and their departments should specification for establishing and perfecting the supervision mechanism of administrative penalty discretion.
Legal work of the Government agencies above the county level shall, through law enforcement, records review and search, 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.
17th administrative penalties administrative penalty decisions of the organ in violation of these regulations, by a higher administrative authority or supervisory organ shall order rectification refuses, the directly responsible shall be given administrative sanctions.
Administrative law-enforcement personnel who violate these rules abuse, negligence, malpractice, cancel law enforcement qualifications shall be given administrative sanctions if the case is serious enough to constitute a crime, criminal responsibility shall be investigated according to law. 18th article this way come into force on January 1, 2013.