Recently, the "Guiding Opinions of the State Council on Further Regulating and Supervising the Setting and Implementation of Fines" (hereinafter referred to as the "Opinions") has been publicly released.
On February 28, the State Council Information Office held a regular policy briefing to introduce the "Opinions".
At the meeting, some media mentioned that in recent years, some cases of "heavy fines for minor offenses" have been exposed, and many laws and regulations in China have already clarified the principle of "punishments commensurate with the excesses". The "Opinions" proposed the establishment of new fines in administrative regulations. When determining the amount of a fine, we must adhere to the principle that the penalty should be commensurate, and be lenient when necessary and strict when severe.
How to grasp this principle in specific implementation?
In this regard, Liu Dawei, head of the Rule of Law Research Bureau of the Ministry of Justice, said that the "Opinions" will implement the principle of commensurate punishment throughout and further make detailed provisions, mainly from three aspects.
The first is to refine the considerations of "passing" and "punishment".
It requires overall consideration of the parties’ subjective faults and profits, and specifies the consideration factors of “fault” and “punishment”.
At the same time, it is proposed to consider factors such as the level of economic and social development, industry characteristics, local realities, fine regulations for similar violations, etc., differentiate situations, classify and handle, and refine the considerations for reasonably setting fines. Be lenient when necessary and strict when strict. .
The second is to clarify the application relationship between separate laws and administrative penalty laws.
When administrative agencies impose fines and other penalties, it is difficult to reflect the principle of proportionate punishment if a separate law is applied alone. However, if the administrative penalty law stipulates that the penalty is lenient, mitigated, withheld, or can be waived, the administrative penalty law must be applied. .
The third is to strengthen law enforcement guidelines by formulating lists and publishing typical cases.
Administrative agencies are encouraged to formulate a list of penalties such as those that cannot be imposed, those that can be denied, reduced, lighter, and heavier fines, etc., and regularly sort out and publish typical cases in accordance with the Administrative Penalty Law and relevant legal norms, and strengthen guidance and training.
(Li Jiali)
Editor in charge: [Liu Pai]