The principle of attribution of responsibility for administrative punishment refers to the general criteria on which administrative organs base their determination of the responsibility of their administrative counterparts for administrative violations. In the field of health law enforcement in mainland China, there has been no clear provision on the principle of attribution of responsibility for administrative punishments, and the general provisions of the Administrative Punishment Law apply. The promulgation of the "presumption of fault clause" in the second paragraph of Article 33 of the Administrative Punishment Law has brought a normative basis for the theoretical research on the principle of attribution of responsibility for administrative punishment, and has also become one of the hot spots and focuses of academic research.
A few days ago, the results of the 2023 legal research project review of the Taizhou Law Society of Jiangsu Province were announced, and the topic of "Analysis of the Principle of Attribution of Responsibility for Administrative Punishment - From the Perspective of Health Law Enforcement", which was recommended by the Taizhou Municipal Health Commission and declared by the Taizhou Municipal Health Supervision Institute, won good results in this selection. From the perspective of law enforcement of health administrative organs, this topic analyzes the theoretical and practical basis for the application of the "presumption of fault clause" to administrative punishment, analyzes the mode selection of the principle of attribution of responsibility for health administrative punishment, the standard of proof of subjective fault and the distribution of the burden of proof, etc., and puts forward relevant suggestions for the application of the "fault presumption clause" of health administrative punishment in mainland China from the two dimensions of procedure and substance.
Two dimensions refine the presumption of fault
Whether subjective fault should be considered in administrative punishment has always been controversial in theory and inconsistent in practice. In the field of health law enforcement, the objective fault standard has always been adopted, that is, administrative punishment "does not care about the subjective state". The newly revised Administrative Punishment Law in 2021 mentions subjective fault for the first time, and the second paragraph of Article 33 stipulates that "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." The "presumption of fault clause" includes subjective fault as a factor in the consideration of administrative punishment, which will have a far-reaching impact on future health administrative law enforcement.
According to the research situation, the research group suggested that the situation of the application of the "presumption of fault clause" by the health administrative organ should be fully explored, how to accurately understand the subjective fault when applying, how to determine the degree of "sufficient to prove that there is no subjective fault", and how the burden of proof should be distributed between the administrative agency and the counterpart.
The research group suggests that the application of the presumption of fault clause can be enhanced from both procedural and substantive dimensions. From the perspective of procedure, the administrative punishment procedure can be optimized to ensure the administrative counterpart's right to know and the right to make a statement and defense. If the parties believe that there is no subjective fault, they shall add matters to the administrative law enforcement document regarding the provision within a reasonable time limit, and explain the adverse consequences that should be borne if relevant evidence is neglected. From the entity dimension, a credit pledge system may be introduced, innovating administrative law enforcement methods, increasing the efficiency of law enforcement, having parties sign a credit pledge, making a written commitment to the subjective fault evidence provided by the party, and punishing those responsible for providing subjective evidence by false or fraudulent means.
According to Chen Dongzhou, the person in charge of the project and the head of the Infectious Disease Prevention and Control Supervision Section of the Taizhou Municipal Health Supervision Institute, if the diagnosis and treatment behavior carried out by non-physicians in an emergency situation is subject to objective attribution, they will be punished. If the principle of presumption of fault is adopted, it can well reflect the simple rule of no fault and no punishment. No punishment without subjective fault can also achieve the purpose of combining punishment and education, so that the administrative counterpart has the possibility of expectation in the administrative-legal relationship, and in the case of causing the same damage consequences, the results of whether there is fault or not are different, so that the administrative punishment has educational significance.
Improve the efficiency of administrative law enforcement and case handling
There are many specialties in health law enforcement, involving medical and health care, sanitation in public places, occupational hygiene, sanitation of disinfection products, and so forth, and specializations shall be differentiated in terms of specific application. For example, for the disposal of substandard disinfection products, it is recommended to introduce a collection system for substandard disinfection products. At present, health-related laws and regulations only stipulate measures such as correction and fines for violations involving disinfection products. The research believes that the market supervision and management department should learn from the regulatory rules of medical devices and introduce a collection system for unqualified disinfection products. Confiscation is not an administrative penalty, and will not have a negative impact on the credit of the enterprise, and the acceptance of the enterprise is high; At the same time, the collection procedure is simple, which can also greatly reduce the workload of the administrative organs.
Ye Dongjin, director of the Taizhou Municipal Health Supervision Institute, said that the accurate application of the principle of presumption of fault and the reduction of the "wrongful case" rate of administrative punishment not only reduce the burden on administrative counterparts, but also provide a good growth environment for market entities and optimize the business environment. While protecting the legitimate rights and interests of administrative counterparts, it can also update the administrative organs' understanding of administrative punishments, improve law enforcement capabilities and levels, improve the efficiency of administrative law enforcement case handling, and quickly close cases with a large number of clear facts and minor circumstances to improve the efficiency of case handling.
Text: Health Daily Special Reporter Cheng Shouqin Correspondent Hu Lifang Lu Yuxuan
Editor: Lian Yi Yang Zhenyu
Proofreading: Ma Yang
Review: Qin Mingrui, Xu Bingnan
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