Any staff member of the department of tobacco monopoly administration or tobacco company who commits the crime mentioned in the preceding paragraph by taking advantage of his position shall be given a heavier punishment according to law.
Legal responsibility of tobacco monopoly
First, the concept of legal liability of tobacco monopoly
Legal liability refers to the mandatory legal liability that the person who commits the illegal act should bear.
There is a causal relationship between illegal behavior and legal responsibility. If there is no illegal act, there is no legal responsibility. On the contrary, if there is an illegal act, you must bear legal responsibility.
Legal liability can be divided into criminal legal liability, civil legal liability, economic legal liability and administrative legal liability. Anyone who violates any laws and regulations must bear corresponding legal responsibilities.
The legal liability of tobacco monopoly refers to that citizens, legal persons and other organizations (including overseas institutions and foreigners) with the administrative legal relationship of tobacco monopoly violate the administrative legal obligations and code of conduct stipulated in the tobacco monopoly law, constitute administrative violations, and bear negative consequences according to law.
In order to make the tobacco monopoly administrative departments, other administrative organs and administrative counterparts consciously fulfill the tobacco monopoly law and abide by the tobacco monopoly code of conduct, the tobacco monopoly law has set 15 administrative legal responsibilities in Chapter 7, aiming at providing compulsory protection for fulfilling administrative legal obligations with the help of national coercive force. It is irrefutable that in the activities of tobacco monopoly administration and administrative law enforcement, the subjects of administrative legal relations are guided by the exemplary role of tobacco monopoly administrative legal obligations, backed by tobacco monopoly administrative legal responsibilities, and use their coercive power to adjust their administrative legal relations. This is the essence of the legal responsibility set by the Tobacco Monopoly Law.
In order to correctly distinguish the legal responsibilities between the subjects of the administrative legal relationship of tobacco monopoly, we summarize them into four aspects:
1. Legal liability of violators of tobacco monopoly administration:
2. The legal liability of the administrative personnel exercising administrative power by the tobacco monopoly administrative department;
3. The legal responsibility of the department of tobacco monopoly administration;
4. The legal relationship of the authorized person authorized or entrusted by the department of tobacco monopoly administration according to law.
In this range, all aspects of the subject of tobacco monopoly administrative legal relationship fulfill their obligations stipulated by law and realize the fundamental purpose of legal existence.
Second, the principle of legal liability for tobacco monopoly
The code of conduct that runs through the process of investigating the legal liability of tobacco monopoly and has a direct and decisive influence on the confirmation and punishment of the legal liability of tobacco monopoly administrative cases is called the principle of legal liability of tobacco monopoly. The principle of legal liability of tobacco monopoly can be divided into two parts: confirmation principle and implementation principle.
(A) the principle of confirming the legal liability of tobacco monopoly
1. Principle of legal liability
According to the provisions of laws and regulations, it is a legal principle that the subject of tobacco monopoly administrative law enforcement shall investigate the legal responsibility of administrative violations through legal procedures. The essence of implementing the principle of statutory liability is to require the subject of tobacco monopoly administrative law enforcement to implement the socialist legal principle of "laws to follow, laws to be observed, law enforcement to be strict and violators to be prosecuted" in administrative management and administrative law enforcement activities. It includes the following three meanings:
(1) To confirm the legal liability of tobacco monopoly must be based on the explicit provisions of tobacco monopoly laws and regulations;
(2) To confirm the legal liability of tobacco monopoly must be determined in accordance with the provisions of tobacco monopoly laws and regulations;
(3) All confirmed illegal acts of tobacco monopoly administration should and must be investigated for legal responsibility.
2. The principle of responsibility.
Anyone who violates the statutory obligations of tobacco monopoly administration and constitutes an illegal act of tobacco monopoly administration shall be independently responsible for his own illegal acts. The department of tobacco monopoly administration can only investigate the legal responsibility of the parties who have committed illegal acts of tobacco monopoly administration. That is, "whoever breaks the law is responsible."
3. The principle of confirmation according to legal procedures.
The subject of tobacco monopoly administrative law enforcement shall investigate the legal responsibility of the administrative violator, and shall confirm it in accordance with legal procedures. Analogy is strictly prohibited to ensure the correct, appropriate, reasonable and legal implementation of the specific administrative act.
4. The principle of consistency between legal liability and illegal acts.
When investigating the legal responsibilities of citizens, legal persons or other organizations, the administrative subjects of tobacco monopoly should treat them differently according to their subjective intentions, the severity of their violation of administrative statutory obligations, the situation that has caused harm to society and their ability to bear legal responsibilities. The form and intensity of the legal responsibility implemented should be consistent with the administrative legal obligations it violated. At the same time, we should pay attention to the differences between different behaviors and grasp the discretion of punishment. In other words, to implement this principle, we must be "based on facts". Even if national laws can be enforced and social justice can be promoted, the parties who have committed administrative violations will be educated and punished by the legal system.
(two) the implementation principles of tobacco monopoly legal liability
1. Principle of legally prescribed punishment
Tobacco monopoly laws and regulations stipulate that the behavior of administrative violators belongs to administrative violations that should be punished before administrative punishment can be given. Acts that are not expressly stipulated in laws and regulations or cannot be confirmed will not be punished, nor can they be punished. The subject of tobacco monopoly administrative law enforcement should strictly grasp the following four legal punishment principles when imposing administrative punishment on administrative violators:
(1) must meet the punishment conditions stipulated by laws and regulations (that is, under what circumstances can administrative offenders be punished);
(2) Administrative punishment must be strictly in accordance with the provisions of laws and regulations and implemented within the scope of its functions and powers;
(3) Administrative punishment must be implemented in strict accordance with the form, scope (or amount) and means of punishment stipulated by laws and regulations;
(4) The administrative punishment can only be implemented after the punishment procedure is performed in strict accordance with legal procedures.
2. The principle of combined punishment for several crimes
Citizens, legal persons or other organizations that constitute more than two kinds of administrative illegal acts shall bear legal responsibilities according to law, and their legal responsibilities shall be determined according to their illegal acts before administrative punishment is combined. Combined punishment for several crimes shall be implemented in accordance with the procedural rules of "separate trial and combined execution". If the circumstances are obviously minor, the principle of "education first, supplemented by punishment" should still be implemented, rather than the principle of combining punishment with several responsibilities.
3. The principle of combined punishment for one crime
Citizens, legal persons or other organizations, although there is only one kind of administrative violation, but laws and regulations stipulate more than two forms of punishment, should distinguish the substantive contents stipulated by law to determine how to implement administrative punishment. First, if laws and regulations stipulate that combined punishment must be implemented, there is no choice but to implement combined punishment; Second, if laws and regulations do not strictly stipulate that combined punishment must be implemented, it can be selectively decided whether to implement combined punishment according to the circumstances and harmful consequences of administrative violations. In short, when investigating the legal responsibility of administrative violations, we must strictly grasp the principle of single punishment or combined punishment according to the provisions of laws and regulations.
4. The principle of heavier punishment
Although the violator of tobacco monopoly administration only violates the provisions of a law and regulations, it only constitutes an administrative violation, but the circumstances are serious and the means are bad, which meets the conditions of heavier punishment. The department of tobacco monopoly administration implements administrative punishment according to the upper limit within the statutory punishment range, which is called the principle of heavier punishment. The key to implementing the principle of heavier punishment is to grasp the illegal facts that administrative offenders should be severely punished. Facts are the basis of punishment.
5. The principle of separate punishment
The department of tobacco monopoly administration separately files a case for two or more administrative violators who violate the same laws and regulations and commit the same illegal act, which is called the principle of separate punishment. Separate punishment, on the one hand, is convenient for different treatment, on the other hand, it can also prevent and avoid negative effects on each other. In the order of punishment, it can be handled according to the method of emphasizing first and then lightening, which is conducive to the smooth implementation of administrative punishment.
6. The principle of non bis in idem
The tobacco monopoly department shall not punish the same illegal act that has been subject to administrative punishment again in accordance with the provisions of the same laws and regulations; Or, if administrative punishment is imposed for the same administrative violation, two or more administrative departments shall not impose administrative punishment separately or repeatedly in accordance with the provisions of the same laws and regulations. These two kinds of administrative punishment restrictions are both called "the principle of no longer punishing one thing". Violation of this principle, separate punishment, repeated punishment and arbitrary punishment are all administrative violations.
Three, the types and implementation conditions of tobacco monopoly legal liability
When the violator of tobacco monopoly administration violates the provisions of the tobacco monopoly law and fails to perform administrative statutory obligations, he must bear negative legal consequences, that is, legal responsibilities.
According to the provisions of the Tobacco Monopoly Law, those who fail to fulfill the statutory obligations of tobacco monopoly administration shall be investigated for legal responsibilities including criminal, civil, economic and administrative aspects.
(A) the types of legal liability for tobacco monopoly
The legal liability of tobacco monopoly is set according to the administrative legal obligations that the administrative counterpart must perform as stipulated in the Tobacco Monopoly Law. The legal liability of tobacco monopoly can be classified according to the following forms.
1. Warning
The warning condemnation made by the department of tobacco monopoly administration in written or oral form to the administrative violator who violates the legal obligations of tobacco monopoly administration is called warning. The warning mentioned here refers to the administrative punishment provisions specially formulated by the State Department of Tobacco Monopoly Administration in accordance with the spirit of the Tobacco Monopoly Law and in the Provisions on Administrative Punishment of Tobacco Monopoly, in order to strengthen the monopoly management of production enterprises within the tobacco industry (see Article 13 of the Provisions on Administrative Punishment of Tobacco Monopoly). Applicable to the production of unqualified tobacco products by tobacco products production enterprises. In this case, according to this regulation, the production enterprise can be given a warning or ordered to stop production for rectification.
okay
The violator of tobacco monopoly administration violates the administrative statutory obligations stipulated by laws and regulations, which constitutes an administrative violation, and tobacco monopoly administration and administrative law enforcement are no exception. Among the legal responsibilities set by the Tobacco Monopoly Law, fine is also one of the main administrative punishment measures. Fines are divided into fixed fines and proportional fines. When imposing administrative penalties on administrative violators, the department of tobacco monopoly administration must strictly follow the provisions of laws and regulations, correctly use the forms of punishment, strictly control the discretion of applying the fixed penalty and the proportional penalty, and the upper and lower limits must not be unfair. It is worth noting that the proportion of fines can not be set unrealistically high, so that the punished person can not bear and pay, so that the administrative punishment can not be implemented, and the administrative punishment decision is just a dead letter. In this way, administrative punishment measures lose their original purpose, significance and function.
3. Order to stop production, business or close down.
If the violator of tobacco monopoly administration illegally produces and deals in tobacco monopoly products, the department of tobacco monopoly administration may order him to stop production, suspend business or close his industrial and commercial enterprises in order to strengthen tobacco monopoly management. This is an important administrative and legal measure to protect legal production and operation, ban illegal production and operation, maintain the normal production and operation order of tobacco monopoly products, and consolidate and adhere to the national tobacco monopoly system. The department of tobacco monopoly administration should be firm and cautious in implementing such punishment. The Procedure for Administrative Punishment of Tobacco Monopoly stipulates that before imposing administrative punishment on the parties, the parties shall be informed of their right to request a hearing.
4. Confiscation of illegal income
The administrative punishment measure that the tobacco monopoly administrative violator illegally engages in the production, operation and transportation of tobacco monopoly products and seeks illegal benefits from it, and the tobacco monopoly administrative department confiscates his illegal income according to law is called confiscation of illegal income. When implementing this administrative punishment measure, we should strictly grasp and distinguish the boundaries between normal profits and illegal profits, and only the illegal profits of administrative offenders can be confiscated, but not the normal profits at will. After the confiscation of illegal income, if the purpose of punishment cannot be achieved, the relevant punishment can be implemented according to law and the administrative punishment can be strengthened.
5. Compulsory acquisition of illegal tobacco monopoly products.
In order to prevent administrative violators from continuing to engage in illegal production, operation and transportation activities with their tobacco monopoly products after their illegal acts have been punished by the administration, the tobacco monopoly administration department takes coercive measures to purchase their tobacco monopoly products at the price stipulated by the state, which is called compulsory purchase of tobacco monopoly products.
Compulsory purchase of tobacco monopoly products should strictly grasp two boundaries: first, it should be necessary and necessary according to law, and it is generally not suitable for compulsory purchase of non-essential and essential products; Second, only illegal tobacco monopoly products can be purchased according to law, and administrative punishment measures of compulsory purchase cannot be taken for tobacco monopoly products or other commodities and articles that are not illegal.
6. Confiscation of illegal tobacco monopoly products.
In order to severely crack down on serious administrative violations in the field of production and circulation of tobacco monopoly products, the tobacco monopoly administrative department takes compulsory measures to nationalize the tobacco monopoly products it owns free of charge when investigating the legal responsibility of the administrative violator, which is called confiscation of illegally operated tobacco monopoly products.
Confiscation of tobacco monopoly products should strictly grasp two boundaries: first, it should be necessary and necessary according to law, and it is generally not appropriate to confiscate non-essential products; Second, according to the law, only tobacco monopoly products illegally produced, marketed and transported can be confiscated, and administrative punishment measures of compulsory confiscation cannot be taken for tobacco monopoly products or other commodities and articles that are not illegal.
7. Order to stop the infringement and compensate the infringed for the losses.
The department of tobacco monopoly administration takes compulsory measures to confiscate the raw and auxiliary materials, tools, products, semi-finished products and other articles used for infringement, explicitly prohibits infringement and compensates for losses, which is called ordering to stop the infringement and compensate for the losses of the infringed.
The infringement of counterfeit tobacco products has the following two basic characteristics: first, the infringer uses the same or similar trademarks as others' trademarks on the same or similar cigarettes produced or sold by himself without the consent of the trademark owner; Second, the illegally used trademark has been approved and registered by the trademark owner in the administrative department for industry and commerce.
8. Revoke the tobacco monopoly license.
If the administrative violator fails to fulfill the statutory obligations of tobacco monopoly administration and refuses to change after education and punishment, the tobacco monopoly license shall be revoked by the tobacco monopoly department. The administrative punishment measure of revoking the tobacco monopoly license is an administrative regulation formulated by the state tobacco monopoly administrative department in the Provisions on Administrative Punishment of Tobacco Monopoly according to the spirit of the Tobacco Monopoly Law (see Article 18 of the Provisions on Administrative Punishment of Tobacco Monopoly). It is suitable for all fields of tobacco production, management and circulation. Administrative violators who violate the legal obligations of tobacco monopoly administration and refuse to repent after education and punishment may revoke their tobacco monopoly licenses in accordance with these provisions.
Revoking tobacco monopoly license is the most severe administrative punishment measure in tobacco monopoly laws and regulations. After the tobacco monopoly license of the administrative violator is revoked, he loses the right to produce and operate tobacco monopoly products and may not continue to engage in the production and operation of tobacco monopoly products.
9 administrative punishment
If the staff of the tobacco monopoly administrative department, the administrative department for industry and commerce, the customs, the people's court and the relevant departments dealing with illegal cases of tobacco monopoly administration violate the statutory obligations of tobacco monopoly administration and do not constitute a crime, their units shall deal with them in accordance with the provisions of political discipline, which is called administrative sanctions. There are six kinds of administrative sanctions: warning, demerit recording, demerit recording, demotion, dismissal and dismissal. The principles and procedures for applying these punishments can be implemented with reference to the relevant provisions of the State Council. The purpose of setting "administrative punishment" in the tobacco monopoly law is to further strengthen the legal concept and discipline of administrative management and administrative law enforcement organs and staff, reduce and eliminate the occurrence of violations of law and discipline, and establish a good law enforcement image for the whole society.
10. Ordered to return the confiscated tobacco products.
The staff of the people's court and the relevant departments handling cases of administrative violations who purchase confiscated tobacco products in violation of laws and regulations shall be ordered to return them in full according to law. Ordering the return of purchased confiscated tobacco products is an important administrative measure to correct the illegal acts of the staff of administrative management and administrative law enforcement organs, which should be resolutely implemented.
(2) Conditions for assuming legal liability for tobacco monopoly
The department of tobacco monopoly administration shall, in accordance with the conditions prescribed by laws and regulations, investigate the administrative illegal responsibility of the administrative violator and impose administrative penalties. Anyone who meets the statutory conditions must be investigated and punished. These conditions are:
1. The violator of tobacco monopoly administration violated the administrative statutory obligations stipulated by tobacco monopoly laws and regulations.
Tobacco monopoly law and other tobacco monopoly administrative regulations, rules, orders, notices, notices, etc. Make specific provisions on the administrative legal obligations that the relative person of tobacco monopoly administration must abide by; Therefore, when the administrative counterpart violates the administrative legal obligation, it is the most basic premise to investigate the legal responsibility of the administrative offender according to law.
2. The illegal behavior of the tobacco monopoly administrative violator is caused by subjective fault.
The administrative violations of the violators of tobacco monopoly administration, whether intentional or negligent, are all caused by subjective faults, and they have the conditions to be investigated for legal responsibility and must be punished according to law. Administrative violators can only be exempted from legal responsibility and administrative punishment if they commit administrative violations in the case of force majeure.
3. The violators of tobacco monopoly administration must be natural persons, legal persons and other organizations with capacity.
Natural persons, legal persons and other organizations with capacity to act violate the provisions of tobacco monopoly laws and regulations and constitute administrative violations, and their legal responsibilities may be investigated according to law and administrative penalties imposed. This is also one of the conditions that should be met. A natural person who has the capacity to act but has not reached the legal age, or a natural person who has reached the legal age but has no capacity to act, violates the provisions of tobacco monopoly laws and regulations, and even if it constitutes an administrative violation, it can be exempted from legal responsibility according to the circumstances.
(three) the conditions for the legal effect of the administrative punishment of tobacco monopoly
When the tobacco monopoly administrative department investigates the legal responsibility of the administrative violator and imposes administrative punishment on him, whether the administrative punishment decision meets the legal conditions is related to the legal effect. Only when the decision on administrative punishment has legal effect can the parties who commit administrative violations bear negative consequences. Otherwise, the administrative punishment decision made by the tobacco monopoly administration department can only be a dead letter.
The basic conditions for the specific administrative acts of the tobacco monopoly administrative department and the relevant administrative departments to take legal effect are as follows.
1. The administrative organ that investigates the legal responsibility of tobacco monopoly and implements administrative punishment is legal.
According to the provisions of the Tobacco Monopoly Law, the violator of tobacco monopoly administrative law shall be investigated for legal responsibility and punished, and the specific administrative act can only be made by the tobacco monopoly administrative department, the industrial and commercial administrative department and the customs according to law. Other administrative organs shall not in any form make specific administrative acts containing administrative punishment for acts violating tobacco monopoly laws and regulations. Otherwise, it is an administrative violation.
2. The administrative organ that enjoys the power of tobacco monopoly administration shall exercise its administrative functions according to law.
The Tobacco Monopoly Law clearly stipulates the functions and powers of the administrative organs that enjoy the administrative power of tobacco monopoly. Therefore, the tobacco monopoly administrative department, the industrial and commercial administrative department and the customs, which enjoy the administrative power of tobacco monopoly, should perform their duties within the scope of their statutory functions and powers, legally exercise their administrative power, and must not exceed or even abuse their administrative power. At the same time, the relevant administrative departments should also support and cooperate with each other, form a strong and strict administrative management and administrative law enforcement system, and do a good job in tobacco monopoly management and comprehensive management.
3. The department of tobacco monopoly administration and other administrative departments shall have a legal basis for administrative punishment.
The department of tobacco monopoly administration and other administrative departments shall make specific administrative acts and impose administrative penalties on administrative violators, and shall be based on the penalties prescribed by laws and regulations. Although the behavior of the administrative violator is illegal, if there is no statutory punishment, the department of tobacco monopoly administration and other administrative departments can't punish it at will, let alone "set" or "create" punishment at will, and punish the administrative violator indiscriminately.
4. The department of tobacco monopoly administration and other administrative organs must implement administrative punishment in accordance with legal procedures.
It is an important condition to ensure the legal effect of administrative punishment to handle administrative illegal cases in accordance with legal procedures and impose administrative punishment on administrative illegal actors. The legitimacy of the procedure should have the following three points:
(1) To implement the administrative punishment of tobacco monopoly, all relevant links and processes must be complete;
(2) Cases of illegal tobacco monopoly administration must be tried and closed within the statutory time limit. Among them, the conclusions of major and important cases must be submitted in accordance with regulations. Without approval, the case shall not be closed without authorization;
(three) the form of punishment and the applicable punishment must comply with the provisions of laws, regulations and administrative rules. It should be punished according to law, reasonable and legal. The main harm of procedural violation is that procedural violation will lead to substantive violation of administrative punishment, thus ultimately denying and overthrowing the administrative punishment that has been implemented. In this way, the offenders are at large and can't get the administrative punishment that should be given according to law, and the ins and outs of administrative cases are completely reversed.
5. The administrative violator who is punished should be a person with capacity and capacity, and have intentional or negligent subjective intention.
The department of tobacco monopoly administration and other administrative departments shall, when imposing punishment on the violator of administrative law, confirm that the person being punished is a person with capacity and behavior, and the person who actually committed the illegal administrative act due to subjective intention or negligence. Otherwise, administrative penalties cannot be imposed on administrative offenders.
6. The behavior of the offender is an administrative illegal act that must or can be punished according to laws and regulations. Although the violator of tobacco monopoly administration violates administrative statutory obligations, it has constituted an administrative violation, but it should be investigated and implemented only if it is necessary or possible to investigate legal responsibility according to laws and regulations. The implementation of administrative punishment shall conform to the form and scope of legal punishment.