人权保障视角下的治安管理处罚程序创新与优化

Innovation and Optimization of Public Security Administration Punishment Procedures from the Perspective of Human Rights Protection

2023年9月1日公布的《中华人民共和国治安管理处罚法(修订草案)》对现行《中华人民共和国治安管理处罚法》作出了较大幅度的修改,其中涉及“处罚程序”章节的修改合计29处,主要修改内容包括以“立案”取代“受理”等7个方面。这对治安管理处罚程序的规则优化和体系完善具有积极的推动作用,应予以充分肯定。从良法善治的标准看,《中华人民共和国治安管理处罚法(修订草案)》在基本权利保障规范、正当程序原则条款设计、控权机制优化等方面还需要进一步改进:一是应将行政拘留纳入听证范围,并将集体讨论作为处十日以上行政拘留决定的必经程序;二是需要明确集体讨论程序的启动程序、参加人员构成、讨论形式及效力等内容;三是继续优化行政程序控权机制,明确和扩大程序条款的规范效力,赋予当事人必要的拒绝权。

The Public Security Administration Punishment Law(Revised Draft)(hereinafter referred to as the“Draft”),published on 1st September 2023,has made plentiful amendments to the current Public Security Administration Punishment Law,of which there are 29 amendments related to the chapter of“Punishment Procedures”,the main amendments include the following 7 aspects:replacing“acceptance”with“filing”,establishing procedural requirements for audio and video recording evidence collection,introducing collective discussion and decision-making into the law enforcement system,adding a legal system review process to prevent risks in the rule of law,improving the procedural mechanism for the protection of minors,adding a confession system to speed up the process of sorting out the complicated cases and simple cases,and expanding the scope in which administrative detention can be suspended.Notably,this is a positive contribution to optimizing the rules and improving the system of public security administrative punishment procedures.The evolution of the rule of law in human society is primarily a progression of 3 stages:the rule of rules,good laws,and good laws and good governance.From the law of complete form to the law of being substantially good is a critical manifestation of the evolution of the rule of law.Based on the criteria of good law and good governance,the Draft still has space for further discussion and improvement in the norms for protecting fundamental rights,the design of provisions on the due process principle,and the optimization of the power limitation mechanism.The current amendment to the Public Security Administration Punishment Law further expands the scope of application of administrative detention while raising the amount of fines on a full-scale basis.For this reason,it is necessary to work out more reasonable administrative procedures to cope with the rapidly expanding power to impose public security management penalties.Specifically,first,administrative detention should be included in the scope of the hearing,“administrative detention”is clearly informed of the offender’s right to hear the type of punishment,and collective discussion as a mandatory procedure for the decision to impose administrative detention of more than ten days.Secondly,it is necessary to clarify the collective discussion procedure of initiating the procedure,the participants,the form of discussion and effectiveness and so on.First of all,the time of the collective discussion should be limited to the penalty decision phase after investigation.Secondly,the participants of the collective discussion should include the head and deputy of the administrative organ and other directors of the sub-divisions.Lastly,the collective discussion of the procedural design,should adhere to the principle of democratic centralism,to ensure that participants of the collective discussion can express opinions independently on a comprehensive understanding basis.Thirdly,we should continue to optimize the administrative procedure control mechanism.On the one hand,it is necessary to set a mandatory model of procedural provisions and make clear the consequences of sanction;on the other hand,it is necessary to give the parties concerned the right of refusal against administrative acts against the procedures,and to allow them to have the right to resist peacefully the operation of obviously unlawful administration.Overall,the Draft’s comprehensive revision of the current Public Security Administration Punishment Law is a significant step forward in constructing the rule of law on administrative punishment.With the implementation of the new Public Security Administration Punishment Law,the concepts of the socialist rule of law with Chinese characteristics,such as human rights protection and due process,will be more deeply rooted in people’s understanding,and the cause of the rule of law on public security administration punishment procedures in line with China’s national conditions will be more stable and far-reaching.