Discussion How to determine the same violation in the principle of non res judicata?

You don't ask this kind of question and don't give a point". "Matter" means an offence or the same offence by the perpetrator. An accurate definition of "one matter" is the basis and premise for the correct application of the principle of non res judicata.

It is necessary to grasp the following aspects: Define what constitutes a violation. In terms of the constituent elements, a matter only meets the characteristics of one illegal act, and if it meets the requirements of two or more illegal acts, it is not a matter.

Definition of completed and attempted violations. Completed violation means that the act carried out by the perpetrator already meets all the elements of a certain illegal act. If the house is illegally occupied for construction, from the preparation of materials to construction until completion.

For completed acts, the entire process should be regarded as a "single matter", and several administrative penalties cannot be implemented in separate preparations; An attempt to commit an offence is one in which an offence has been committed, but the offence has not been completed for reasons other than the will of the perpetrator. If the house is built illegally, the site has been cleaned up and the construction has been started. Since the perpetrator has already begun to carry out the act, it constitutes a violation of the law, and the punishment of "one matter" should also be determined.

Definition of serial violations. Continuous illegal acts refer to the act of violating the same legal norm by carrying out several independent illegal acts of the same nature in succession that meet the requirements of several violations. For example, the taxi driver continues to carry passengers in violation of regulations.

For continuous conduct, the administrative organ shall use the discovery and punishment of the administrative organ as the boundary to define whether it is a "single matter". The discovery of illegal acts by administrative organs, together with several previous successive acts, is defined within the scope of "one matter". If the perpetrator commits a series of illegal acts after being punished, it is defined as a new "matter" in accordance with the above principles.

Definition of continuing conduct. Continuing conduct refers to the continuation of an illegal act in a state of time from the beginning to the end of the act. For example, a hotel has been operating without a license for one year.

Continued conduct, regardless of the length of time, is defined as "one thing"; Definition of implicated acts. If an implicated act is directed at an unlawful purpose, and the illegal manner or result implicates other unlawful acts, it is appropriate to define the implicated act as a "matter" and punish it.

Partially agreed, to add. According to the relevant provisions of the Administrative Punishment Law, a party must not be fined twice or more for the same illegal act. In other words, in fact, there is also the implication that a second or even multiple fines may not be imposed, but other forms of administrative penalties may be imposed, such as revocation of licenses.

Legal Analysis: The formulation of the principle of non judice is correct in saying that two or more penalties cannot be imposed on the basis of the same legal norm.

Legal basis: "Administrative Punishment Law of the People's Republic of China" Article 29: For the same illegal act, a party shall not be given an administrative penalty of two or more fines. Where the same illegal conduct violates multiple laws and norms and shall be punished with a fine, it is to be punished in accordance with the provisions on the higher amount of fines.

Legal analysis: According to the requirements of the rational system and the spirit of legislation, administrative punishment should follow the principle of no further punishment, according to the general viewpoint, for the competition of different provisions of administrative regulations, an illegal act violates two or more different provisions of administrative law norms at the same time. If the power of administrative punishment is granted to the same administrative organ in each legal regulation, but the type of administrative punishment specified is not the same, the administrative organ may increase the punishment in accordance with the different legal provisions.

If the type of punishment is the same, but the administrative punishment power is granted to different administrative organs, and the administrative organ with the right to impose punishment can only give one administrative punishment, and where two administrative punishments are given, the administrative punishment made first is lawful, and the administrative punishment given later shall be found to be unlawful.

Legal basis: Article 24 of the Administrative Punishment Law of the People's Republic of China shall not give an administrative penalty of more than two fines to the parties for the same illegal act.

How to understand the "same illegal act" in "the same illegal act shall not be imposed on the party with an administrative penalty of more than two fines"? "The same illegal act" refers to the fact that the party has committed an act of defamation or an act that violates the administrative order, and the party objectively has only one independent and complete illegal fact. To understand this concept, you need to pay attention to the following:

First, the same offence refers to a separate offence and not a class of offences. Second, the same illegal act is the same offender in terms of the subject of the committed. Third, the same violation refers to a fact of violation, not a single offence.

Fourth, the same illegal act refers to the whole picture of the illegal act, if the offender has made a major deception to the administrative punishment subject for the act, and the deception causes the punishment subject to have a significant impact on the characterization and punishment of the violation of the Lead Slag Preparation Law, then the punishment subject can impose additional penalties on the illegal party according to the newly ascertained facts after the first punishment Article 24 of the Administrative Punishment Law stipulates: "For the same illegal act of the party, no administrative penalty of more than two fines shall be given." "There are three situations in which the same violation of administrative law norms occurs:

First, it is relatively common for the same act to violate an administrative law norm and be subject to the jurisdiction of an administrative subject. Second, if the same act violates an administrative law norm, two or more administrative entities have jurisdiction. Third, if an act violates two or more administrative legal norms of Liang Zha, and is under the jurisdiction of two or more administrative entities in accordance with the law, the so-called "illegal acts of competition" or "normative acts of competition".

It can be seen that the same illegal act is not an act that violates a legal norm or an administrative relationship. Does that make sense?

Legal analysis: To understand the principle of non-punishment for an act, it should operate at four levels: (1) When the first disposition of an act reinstatement by the administrative subject of the actor has not yet lost its effectiveness, the second disposition cannot be given on the basis of the same facts and reasons, unless the second disposition is a supplement, correction or correction of the first disposition.

If the first disposition is improper, the administrative entity shall first revoke it, and then renew the disposition of the difference. If the first disposition is lawful and correct but does not meet the administrative objectives, the administrative entity should fully consider the principle of trust protection, and if it must be revoked, the counterparty who suffered losses shall be compensated in accordance with law. (2) Except where there are clear provisions in the law or reasonable presumption in accordance with basic legal principles and legal rules, such as combined punishment, multiple layers of punishment for one act, punishment for multiple people for one matter, and multiple acts for one act, the administrative entity shall strictly follow the principle of one punishment for one act.

3) One act is no longer punished of the same kindFor the same illegal act, the administrative entity cannot give two or more punishments of the same type. This mainly refers to the situation where an illegal act violates several legal provisions, that is, the so-called competition of legal provisions or competition of norms in legal theory. In the event of regulatory competition, the relevant administrative entities corresponding to each legal provision shall be allowed to impose penalties on different grounds.

However, in order to reflect relative fairness and justice, each administrative entity cannot adopt the same type of punishment against the perpetrator. (4) An act shall not be fined more than twiceFor the same illegal act of the perpetrator, no matter how many legal provisions are violated, how many reasons for punishment are constituted, and several administrative entities impose punishments, a fine can only be imposed once. If several administrative entities have the right to impose fines on the illegal acts involved in the case, according to the principle of priority of effect, it should be the one who imposes fines first who is valid.

Legal basis: "Administrative Punishment Law of the People's Republic of China" Article 24: For the same illegal act of the same offender violating the same law, no two fines or multiple fines shall be given. However, if multiple people jointly violate the law, all offenders may be fined at the same time; If the illegal act violates more than two legal provisions, different fines and penalties may be imposed by the non-Hongbi law enforcement administrative entities; If the fine is not enough to eliminate all the harm, different types of penalties can also be imposed for the same violation, such as fines and orders to suspend business for rectification.

Legal analysis: The principle of non-rebation in one case is a concept in jurisprudence, which refers to the fact that the offender shall not be punished twice or more times on the same basis for the same violation. The purpose of the principle of non-reference of punishment as an administrative punishment is to prevent repeated punishment and to embody the legal principle that excessive punishment is commensurate, so as to protect the legitimate rights and interests of the counterpart of the administrative banquet.

Legal basis: "Administrative Punishment Law of the People's Republic of China" Article 24 The same violation of the law by the parties shall not be given an administrative penalty of more than two fines.

Legal analysis: According to the requirements of the rational system and the spirit of legislation, administrative punishment should follow the principle of no further punishment for one thing, and according to the general viewpoint, for the competition of different provisions of administrative regulations, an illegal act violates two or more different provisions of administrative law norms at the same time. If the administrative penalty power under each legal norm is granted to the same administrative organ, but the type of administrative punishment specified is different, the administrative organ may, in accordance with different legal provisions, increase the punishment from Kjeldahl to the hypothetical one.

If the type of punishment is the same, but the administrative organ with the right to impose an administrative penalty can only give one administrative punishment, and where two administrative punishments are given, the administrative punishment made first is lawful, and the administrative punishment made later shall be found to be unlawful.

Legal basis: Administrative Punishment Law of the People's Republic of China Article 24: For the same illegal act, a party shall not be given an administrative penalty of more than two fines.

The principle of non-re-punishment means that administrative organs must not give the same form of administrative punishment to the same party for the same illegal act, and cannot impose repeated punishments. The same violation is a violation of a certain legal norm. If an illegal act violates two or more legal norms, such an act is not the same illegal act, but an act of competing norms, and the competent organ can only determine that the punishment decision of a certain administrative organ is lawful and valid.

The same violation is a one-time act, and two or more violations committed at the same time or in a continuous period of time are several consecutive violations, not the same violation of the Divine Law. When the public security organs discover that the civil entity has not committed more serious harm to society, and that more information about the criminal group can be obtained without arrest, it will generally establish a suspension of detention. According to the provisions of the relevant laws, the suspension of detention is a decision that the public security organs can make in accordance with the provisions of the situation.

Ruler matching. Article 24 of the Law on the Punishment of Administrative Penalties stipulates that no party shall be fined more than twice for the same illegal act.