Recently, the "Guiding Opinions of the State Council on Further Regulating and Supervising the Setting and Implementation of Fines" has been publicly released.
The State Council Information Office held a regular briefing on State Council policies on the afternoon of February 28, 2024. The Deputy Minister of Justice introduced the "Guiding Opinions of the State Council on Further Regulating and Supervising the Setting and Implementation of Fines".
How to standardize the setting and implementation of fines?
How to grasp the principle of commensurate punishment and punishment in specific implementation?
Let’s see together——
How to regulate the setting of fines?
The first is to prevent excessive fines.
Fines are generally not set for those that can be managed through education and persuasion, ordering corrections, information disclosure, etc.
When fines cannot be effectively managed, more appropriate types of penalties must be determined in accordance with the law.
It is necessary to ensure that the fines set can effectively curb violations and encourage compliance with the law.
The second requirement is that fines should be set in a balanced manner.
In response to the problem of unbalanced penalty setting, it is stipulated that the same administrative regulations and rules setting fines for different illegal acts must be coordinated with each other, and different administrative regulations and rules setting fines for the same illegal act must be connected with each other.
In general, the problem of inconsistency in the current fine regulations must be solved from the setting point of view. This mainly puts forward higher requirements for legislators.
In response to the problem that the gap between the multiples of some fines is too large, it is stipulated that the minimum amount of fines and the maximum amount should generally not exceed 10 times.
In response to problems such as the starting amounts of some fines being too high and difficult to enforce, the "Opinions" also emphasize that if a higher starting amount of fines is planned, the opinions of experts and scholars should be fully listened to, and similar illegal acts in different fields or the same field should be referred to. The amount of fines for different violations.
At the same time, the "Opinions" also encourage cross-administrative regions to jointly formulate unified regulatory systems and standards and regulations in accordance with regulations, and collaboratively promote the relative unification of fine amounts and discretionary benchmarks.
This is mainly to solve the problem of trying to unify standards between adjacent areas to avoid excessive differences.
This is the setting of the penalty.
How to regulate the implementation of fines?
First, the imposition of fines must comply with the principle of commensurate punishment, which should be light and severe.
It is necessary to scientifically refine the relevant circumstances of lenience, reduction, no punishment, or no punishment according to the actual conditions of different regions and fields; for those that meet the relevant legal circumstances, the Administrative Penalty Law must be applied and dealt with accordingly.
We must intensify law enforcement in key areas such as production safety, life and health, and product quality. For serious violations, we must implement the requirement of "punishing individuals" in accordance with the law and resolutely safeguard the legitimate rights and interests of enterprises and the public.
Second, the decision to impose a fine must comply with legal principles, logic and reason.
The decision on fines must fully consider the personal feelings of the public, ensure that the decision on fines complies with legal principles, and consider relevant reasons and rationales. At the same time, the system for deferred and installment execution of fine decisions must be optimized.
Administrative agencies are encouraged to establish a normal communication mechanism with enterprises and the public, strengthen follow-up assistance and guidance, and explore the establishment of law enforcement models such as "prevention first, exemption from fines for minor offenses, severe penalties for serious violations, commensurate penalties for excessive penalties, and follow-up visits".
The third is to put forward new requirements for standardizing electronic technology monitoring equipment.
It is clearly proposed that by the end of December 2024, that is, before the end of this year, a comprehensive cleanup and standardization work will be carried out on law enforcement electronic technology monitoring equipment.
It is also clarified that before the end of each year, relevant departments of local people's governments at or above the county level and towns (subdistricts) must report to the people's government at the same level and the people's government at the higher level respectively the situation of new monitoring equipment.
In this regard, the judicial administrative department must strengthen law enforcement supervision.
How to grasp the principle of commensurate punishment and punishment in specific implementation?
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.
How to carry out effective supervision and governance regarding inappropriate fines such as using fines to increase revenue, using fines to escrow, and profit-seeking fines?
The first is to emphasize three "not allowed" and two "strictly prohibited".
Requesting a fine must be both legal and proportionate.
On the one hand, maximum fines or high fines must not be arbitrarily imposed, the threshold for identifying illegal acts must not be arbitrarily lowered, and the scope of illegal acts must not be arbitrarily expanded.
In other words, fines cannot be arbitrary, excessive fines must be commensurate, and penalties must be precise. Fines must be stipulated to a certain extent. Fines cannot be directly imposed with the highest amount or the highest level. We must adhere to the principle of big fines for big mistakes and small fines for small mistakes. Small mistakes should be punished heavily, big mistakes should be punished lightly, those who should not be punished should be punished, those who should be punished lightly should be punished heavily, and those who should be punished severely should be punished lightly.
On the other hand, there are two "strict prohibitions": it is strictly prohibited to impose fines for profit-seeking, and it is strictly prohibited to impose fines for illegal activities that have exceeded the statutory accountability period, which draws a red line.
Second, for cases where the facts, nature, circumstances and degree of social harm of illegal acts are basically similar, it is necessary to ensure that the fine discretionary scale meets legal requirements and avoid different penalties for similar cases.
Solving this problem mainly relies on setting benchmarks for administrative discretion.
Previously, the "Opinions on Further Standardizing the Formulation and Management of Administrative Discretionary Benchmarks" issued by the General Office of the State Council put forward comprehensive requirements for this, requiring all localities and departments to promptly formulate, modify, and publish administrative discretionary benchmarks in accordance with the document, and provide legal The principle provisions in laws, regulations, and rules or the law enforcement authority and discretionary scope with certain flexibility should be refined and quantified.
Especially for fines with a certain range, it is necessary to divide the levels between the highest amount and the lowest amount to reduce the discretionary space as much as possible.
The third is to carry out in-depth source management.
For fine matters such as high social attention, concentrated complaints and reports, and frequent violations, it is necessary to comprehensively analyze and judge, and optimize management measures in a targeted manner, and cannot just ignore fines.
For common problems in industries and fields involving public security and people's lives and health, we must draw inferences from one example to promote the transition from individual case handling to category-case management to systemic governance to achieve "one case, one category, and one area of impact."
The fourth is to increase notification and exposure.
It is necessary to strengthen analysis, judgment, guidance and supervision, collect and sort out high-frequency complaints and online public opinions, promptly report and name typical illegal issues in setting or implementing fines, and punish relevant personnel in accordance with laws and regulations.
How to regulate off-site law enforcement?
First, manage the two "quantities" well.
The first is to clean up and standardize the "stock".
Relevant departments of local governments at or above the county level and township people's governments (subdistrict offices) must complete the cleanup and standardization of law enforcement electronic technology monitoring equipment. Specifically, they must promptly stop using illegal, non-compliant, and unnecessary monitoring equipment and clean up The results must be reported to the government at the same level and the government at the higher level respectively.
In recent years, some provinces have carried out special cleaning work on electronic technology monitoring equipment, and some have also formulated corresponding management measures, all of which have achieved very good results.
The second is to monitor and report "increments".
That is to say, establish an annual reporting system for new monitoring equipment, increase its openness and transparency, and accept supervision from all aspects.
Second, strictly control the three "checks".
The first is to strictly control legal review.
Any use of monitoring equipment to collect and fix illegal facts must undergo legal review.
The installation location, spacing and quantity of monitoring equipment must be determined according to regulatory needs. The installation location must have clearly visible signs, and it must be announced to the public in a timely manner before being put into use. It is strictly prohibited to set it up arbitrarily in order to increase fine revenue and deviate from actual regulatory needs.
The second is to strictly control the technical review.
Any use of monitoring equipment to collect and fix illegal facts must undergo technical review.
The main requirement is to ensure that the measurement of equipment is accurate. Equipment that has not been verified according to law, has not been verified after the expiration date, or has failed to pass the verification shall not be used.
The third is to strictly control law enforcement supervision.
It is necessary to make full use of big data analysis and judgment, and carry out key supervision of monitoring equipment with abnormally high collection of illegal facts and excessive fines.
Immediate deactivation of illegal or illegal settings, or misuse of monitoring equipment, and review, evaluation and rectification within a time limit.
The "Opinions" also specifically emphasize that judicial administrative departments at all levels must strengthen supervision of law enforcement and supervise its implementation.
(Chinese government website)