Article 5
Administrative punishments follow the principles of fairness and openness.
The establishment and implementation of administrative punishments must be based on facts, and be commensurate with the facts, nature, circumstances, and degree of harm to society of the violation.
Provisions for imposing administrative penalties for violations of the law must be made public; Where it has not been announced, it must not be the basis for administrative punishments.
【Interpretation】
This article is a provision on the principle of fairness and openness in administrative punishment and proportionality of punishment.
1. On the principles of fairness and openness
On the basis of paragraph 1 of this article, administrative punishments shall follow the principles of fairness and openness.
The first is the principle of impartiality. The so-called impartiality refers to fairness and justice, impartiality, equal treatment of all parties, and equal and fair application of the law. In order to ensure that the principle of impartiality is reflected in administrative punishments, this law provides for a number of specific measures, such as stipulating that a party shall not be fined more than twice for the same violation; The establishment and implementation of administrative punishments must be based on facts, and be commensurate with the facts, nature, circumstances, and degree of harm to society of the violation; Implement a system of fines and fines, administrative detention and short-term detention, or fixed-term imprisonment; Implement the principle of separating case investigators from those who make punishment decisions; Establish a system for recusal of law enforcement personnel in the process of punishment; Establish a system of benchmarks for the discretion of administrative punishments, and unify the discretionary scales for administrative punishments; Set up hearing procedures for heavier administrative punishments, etc.
In law enforcement practice, attention should be paid to the problem of obvious unfairness in administrative punishments. The so-called obvious impartiality refers to the obvious inappropriateness of administrative acts taken by administrative organs and their staffs, organizations authorized by laws and regulations, and entrusted organizations within the scope and scope prescribed by laws and regulations. In other words, although the administrative penalty decision is formally legal, it is obviously unreasonable. The administrative punishment is obviously unreasonable and inappropriate, and violates the purpose of the administrative punishment established by laws and regulations. There are mainly the following situations in which administrative punishments are obviously unfair: First, the same responsibility and different punishments. Equality before the law is a basic principle of mainland law, and citizens, legal persons, or other organizations that violate the administrative order shall be given the same administrative punishment if they are of the same nature and circumstances. If different administrative penalties are imposed on those who are equally responsible, it violates the legal principle of equality before the law and undermines the authority of the administrative organs. Second, in the same case, heavy responsibility and light punishment or light responsibility and heavy punishment. This makes it difficult for the punished person to be convinced, and even has a psychology of confrontation with society, which not only fails to solve the problem, but also intensifies the contradiction and adversely affects social stability. Another example is that in the same case, different parties are treated unequally with regard to their rights to make statements, to make a defense, and to request a hearing. Third, the factors that should be taken into account are not taken into account. It mainly refers to the administrative organ's failure to take into account basic statutory factors or general common sense factors when making administrative punishment decisions, such as the circumstances of the violation, the attitude of admitting mistakes, whether it is negligent, and so on.
The second is the principle of openness. The so-called openness means that the basis, process, and decision of the administrative punishment are all open and not secret. The principle of openness is an inevitable requirement and necessary guarantee of the principle of impartiality. For example, paragraph 3 of this article clearly stipulates that "provisions on the imposition of administrative penalties for illegal acts must be published; Where it has not been announced, it must not be the basis for administrative punishments. Article 39 stipulates that information such as the organ implementing the administrative punishment, the basis for filing the case, the implementation procedures and the channels for relief shall be publicized. Article 44 stipulates the obligation of administrative organs to inform: "Before making an administrative punishment decision, the administrative organ shall inform the parties of the content, facts, reasons, and basis of the administrative punishment to be imposed, and inform the parties of their rights to make statements, defenses, and request hearings in accordance with law. "Article 62 further stipulates that before making an administrative punishment decision, an administrative organ and its law enforcement personnel shall not make an administrative punishment decision without informing the parties of the content, facts, reasons, and basis of the proposed administrative punishment in accordance with the provisions of Articles 44 and 45 of this Law, or refusing to hear the parties' statements and defenses; Except where the parties expressly waive the right to make statements or defenses. Article 64, paragraph 3 stipulates that hearings shall be held in public, "except where state secrets, commercial secrets, or personal privacy are kept confidential in accordance with law". Paragraph 1 of Article 48 stipulates that administrative punishment decisions with a certain social impact shall be made public in accordance with law.
2. On the principle of proportionality of punishment
The so-called proportionality of excessive punishment means that the type and range of administrative punishment imposed on citizens, legal persons, or other organizations that violate the order of administrative management shall be commensurate with their illegal conduct. The principle of proportionality of excessive punishment requires that when setting and implementing administrative punishments, they must be based on facts, commensurate with the facts, nature, circumstances, and degree of harm to society of the illegal acts, and cannot be unduly light or heavy. Generally speaking, when an administrative organ imposes an administrative penalty on an illegal act, it needs to comprehensively consider the following factors: whether the facts constituting the illegal act require an administrative penalty; whether the illegal act falls within the scope of administrative punishment; The severity of the violation, whether it is an act that is serious and warrants criminal punishment, or whether the circumstances are minor enough to be punished for administrative punishment; the degree of social harm of the illegal act, whether it seriously harms society or does not cause much harm; Wait a minute. In addition, this law also provides for systems such as non-administrative punishment and mitigated administrative punishment, such as Article 33, paragraph 2, which stipulates: "If the party has sufficient evidence to prove that there is no subjective fault, no administrative punishment shall be imposed." Where laws and administrative regulations provide otherwise, follow those provisions. "To effectively ensure that the principle of proportionality of administrative punishment is followed, it is reflected in the specific process and links of the implementation of administrative punishment.