The Administrative Punishment Law of the People's Republic of China (hereinafter referred to as the "Administrative Punishment Law") revised in 2021 has many highlights, among which the addition of a subjective fault clause is generally regarded as the most innovative system in the revision of the Administrative Punishment Law. However, in the actual determination process, some law enforcement personnel do not have a thorough understanding of this provision, and even believe that the determination of subjective fault in the administrative punishment procedure is dispensable. The author believes that in the administrative punishment procedure, the subjective fault of the counterpart should be determined, and it should be clearly expressed in the administrative punishment decision and other documents. In this regard, this article will make a decision on the determination of subjective fault, and please criticize and correct the inappropriateness. 1. The relevant concept of subjective fault
A choice made by a person under free will or relative free will is at fault if it is contrary to an obligation. The fault here refers to a legal fault and not a moral fault. Legal fault is when the actor could have chosen not to violate the law or not to breach the contract, but instead chose to do so. Subjective fault is roughly divided into two categories: intentional and negligent. Intentionality refers to the state of mind that one's behavior will have a result that harms others and society, and hopes or allows such a result to occur. Negligence refers to the state of mind that should have foreseen that one's actions might have consequences that would harm others and harm society, but did not foresee them because of negligence, or had foreseen them but believed that they could have avoided them, so that such results would have occurred. In the field of criminal law, subjective faults can be subdivided into four categories: hope (direct intention), laissez-faire (indirect intention), foresight but credulity can be avoided (overconfident negligence), and failure to foresee (negligent negligence). "In terms of attitude (will) towards the result, he directly and deliberately voted in favor, indirectly deliberately abstained, and negligently did not vote or voted against. ”③2. The necessity of determining subjective fault
In the author's opinion, in the administrative punishment procedure, evidence of the subjective fault of the counterpart should be collected, the subjective fault should be identified and expressed, and the degree of responsibility should be refined as much as possible. This is a prerequisite for ensuring that the facts of the case are ascertained, discretion is reasonably exercised, and whether or not to impose an administrative penalty is decided. There are many legal norms that clearly stipulate that the subjective fault of the illegal counterpart shall be determined, and the author excerpts the following part: Article 77, Paragraph 2 of the "Detailed Rules for the Implementation of the Regulations on the Registration and Administration of Market Entities" "......Where the parties have evidence sufficient to prove that there is no subjective fault, administrative punishment is not to be given. Paragraph 2 of article 12 of the "Measures for the Management of the List of the Untrustworthy with Serious Violations for Market Regulation" stipulates that "where parties have evidence sufficient to prove that there is no subjective intent, they are not to be entered into the List of the Untrustworthy with Serious Violations." Article 2 of the "Guiding Opinions on Regulating the Discretionary Power of Administrative Punishment for Market Regulation" stipulates that "the discretionary power of administrative punishment as used in these Opinions refers to the authority of the market regulation departments at all levels to decide whether to give administrative punishment, and the type and extent of administrative punishment, in accordance with the provisions of laws, regulations, and rules, and comprehensively considering factors such as the facts, nature, circumstances, degree of social harm, and subjective fault of the parties in the implementation of administrative punishments." ”3. The burden of proof of subjective fault
Based on the criterion of whether the elements of subjective fault are expressed in legal norms, they can be divided into two categories: those that stipulate the elements of subjective fault and those that do not. For the former, the administrative organ shall collect evidence to prove the subjective fault of the counterpart, otherwise the facts of the violation cannot be established. For example, paragraph 3 of article 55 of the Advertising Law states that "advertising agents and advertisement publishers clearly know or should know that advertisements are false, but still design .......""Administrative organs should collect evidence to prove that the counterpart "knew or should have known", otherwise the facts of the violation cannot be established and must not be punished. For the latter, the administrative organ is not required to collect evidence related to subjective fault and presume that the counterpart is at fault. The expression of presumed fault should be as clear as possible as to whether it was intentional or negligent. For example, in the case of forging the logo of another person's registered trademark, the subjective fault of the perpetrator should be presumed to be intentional. For similar issues, they should be determined in conjunction with interpretation methods such as purpose interpretation and system interpretation, as well as relevant materials such as criminal law. It should be noted that, in any case, if the administrative organ finds evidence that can prove that the counterpart lacks the capacity to be responsible or is subjectively at fault, it should also take the initiative to collect it to ensure a comprehensive, objective and impartial investigation. ④4. Identification of subjective fault elements
The author has sorted out the elements of subjective fault that are clearly expressed in legal norms, and the keywords are usually as follows: intentional, knowing (knowing), malice, negligence, should have known (should have known), gross negligence, etc. For example, Article 10, Paragraph 2 of the Anti-Unfair Competition Law "intentionally allows a designated person to win a lottery......Paragraph 3 of Article 58 of the "Advertising Law": "Advertising agents and advertisement publishers clearly know or should know that there are ...... provided for in the first paragraph of this article."Article 61 of the "Product Quality Law" knows or should know that it is a ...... prohibited by the provisions of this LawArticle 62, Item 8 of the "Law on the Promotion of Private Education" provides that "maliciously terminating the operation of a school......Article 64, Paragraph 2 of the Fire Protection Law "...... of negligence causing disasters."Paragraph 3 of Article 189 of the Company Law: "The ...... of a member of the liquidation group causing losses to the company or creditors due to intentional or gross negligence."Paragraph 1 of Article 51 of the "Measures for the Administration of Patents" "causes losses to the interests of the client or a third party due to intentional or gross negligence......"The meaning of knowingly, knowingly (knowing) is equivalent. The meaning of bad faith is not clearly defined and may be equated with intent or with intent or gross negligence. Paragraph 2 of Article 1 of the Interpretation of the Supreme People's Court on the Application of Punitive Damages in the Trial of Civil Cases of Infringement of Intellectual Property Rights stipulates that "the term "willfulness" in this Interpretation includes the malicious intent provided for in Paragraph 1 of Article 63 of the Trademark Law and Paragraph 3 of Article 17 of the Anti-Unfair Competition Law. The author believes that bad faith and intent should be interpreted in the same way, and this understanding is also conducive to protecting the rights and interests of the counterpart. Should have known (ought to have known) usually indicates subjective negligence, but it may also be a case of "knowing", i.e., presumed knowledge, subjective intent. Its meaning should be determined in conjunction with other methods of interpretation. Gross negligence is the opposite of ordinary negligence or minor negligence, and there is no direct and specific reference to define it. The author has consulted two pieces of information: the Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Cases of Compensation for Damages in Railway Transport has the following provisions: "'Gross negligence' in Article 17 of the Railway Law refers to the reckless act or omission of a railway transport enterprise or its employees or persons to carry the goods, parcels and baggage knowing that losses may be caused. ”；The Civil Law (Ninth Edition) edited by Wang Liming has the following statement: "The infringed party does not listen to the warning or ignores the obvious warning, and enters the dangerous animal breeding area without permission, etc., which is also an act of gross negligence." ”。Based on this, the author believes that the degree of liability for gross negligence is comparable to that of foresight but credulity that could have been avoided (overconfident negligence). V. Methods for Collecting Evidence of Subjective Fault
The counterparty voluntarily admits that it has subjective fault, especially subjective intent, when committing the illegal act, and lacks the possibility of expectation. Administrative organs should collect and fix objective evidence that can reflect the subjective fault of the counterpart. In the author's opinion, the relevant provisions of normative documents such as judicial interpretations should be mainly referred to to grasp the consideration factors of subjective fault. For example, Article 5, Paragraph 1, Item 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Computer Network Domain Names provides: "...In any of the following circumstances, the people's court shall find that the person has bad faith: the ...... of registering another person's well-known trademark as a domain name for commercial purposesArticle 6 of the Interpretation (1) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases over Food Safety stipulates that "if a food business operator has any of the following circumstances, and the consumer's claim constitutes 'knowingly' as provided for in Article 148 of the Food Safety Law, the people's court shall support it: (1) the food has passed the shelf life marked on the food but is still sold;(2) Failure to provide legal purchase of the food sold**; (3) Purchasing goods at an obviously unreasonable low price without reasonable reasons; (D) failure to perform the obligation of purchase inspection in accordance with the law; (5) Falsely labeling or changing the date or batch number of food production; (6) Transferring, concealing, or illegally destroying food purchase and sales records or intentionally providing false information. "Of course, these more authoritative normative documents cannot contain all the subjective fault in the field of administrative law enforcement, and when there is no direct reference provision, the objective conditions for determining subjective fault should be refined, and a number of objective evidence should be integrated to make a judgment. Reference can also be made to the writings of some scholars. For example, Xu Guanghua's "2020 Zhonghe Education Criminal Law Special Lecture Intensive Lecture Volume" has the following contents: 1The negligence of overconfidence is manifested in the actor's excessive trust in his own judgment and ability, which usually includes the following categories: (1) overestimating his own ability; (2) improperly estimating the role of the objectively existing conditions in avoiding harmful outcomes; (3) Mistaking belief that the outcome is less likely to occur, so the outcome can be avoided. 2.Negligent negligence is manifested as the perpetrator's unintentional violation of basic rules of life, business rules, industry rules, etc.
Note: See Zhou Anping, Common Sense Jurisprudence, Peking University Press, 2021, pp. 103-104.
See Zhang Wenxian, ed., Jurisprudence (5th Edition), Higher Education Press, 2018, p. 169.
See Zhang Mingkai, Criminal Law (Sixth Edition), Law Press, 2021, p. 386.
See Article 54, Paragraph 1 of the Administrative Punishment Law.
See Zhu Qingyu, General Theory of Civil Law (Second Edition), Peking University Press, 2016, p. 262.
See Zhang Mingkai, Criminal Law (Sixth Edition), Law Press, 2021 Edition, p. 347.
Author |Beijing Yanqing District Market Supervision Bureau, Zhang Yuhui, Song Dexing.
Audit |Yu Jackie Chan Zhang Lijuan.
Edit |Yellow round.
Internship Editor |Yang Qi.
Produced by the New ** and Digital Publishing Department of China Industrial and Commercial Press.
The Second Session of the 14th National Committee of the Chinese People's Political Consultative Conference (CPPCC) opened today! The development of the private economy has attracted much attention! Main agenda
Sun Baoguo, a member of the National Committee of the Chinese People's Political Consultative Conference: The remarks of prefabricated dishes are unscientific, and rumors should be coordinated The State Administration for Market Regulation held a meeting in Beijing to promote the development and growth of the market supervision system New regulations! Here, the market supervision field implements the "accept punishment and choose light" system!
Regulatory EnforcementAnnual Report |Notification and Commitment System |Food |Quality |Consumer Rights Protection |Drugs |Cosmetics |Antitrust |Anti-Unfair Competition |Ad |Special Equipment |Inspection and testingLearn to rechargeYou ask me to answer |Typical Cases |One lesson a dayThink tank expertWei Junxin |Wang Difei |Liu Shuangzhou |He Maobin |Condi |Dong Xiaohui |Xie Xuyang |Jing Weidong |Jiang Shiping |Li JunProduct ActivitiesSemi-monthly subscription |Book Selections |Micro Classroom Integration**Integrated Information Service|Spot check treasure |"Three micro" selection "five hundred" selection |Social Co-Governance ConferenceNew ** listWeChat |Weibo |Tik Tok |Headlines |Kuaishou |Consumer protectionSocial ** streamDirector |Law Enforcement |You ask me to answer |Advertising Regulation |Food regulation.
2024 Annual Issue of Market Supervision and Administration (Semi-monthly) (24 issues in total).