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

Abstract： The Public Security Administration Punishment Law （Revised Draft）（hereinafter referred to as the “Draft”）， published on 1st September 2023， has madeplentiful 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 evidencecollection， introducing collective discussion and decision-making into the law enforce‐ment 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 confessionsystem 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 ofpublic security administrative punishment procedures.The evolution of the rule of lawin 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 ofbeing 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 forfurther discussion and improvement in the norms for protecting fundamental rights，the design of provisions on the due process principle， and the optimization of thepower limitation mechanism. The current amendment to the Public Security Adminis‐tration Punishment Law further expands the scope of application of administrativedetention while raising the amount of fines on a full-scale basis. For this reason， it isnecessary to work out more reasonable administrative procedures to cope with the rap‐idly expanding power to impose public security management penalties. Specifically，first， administrative detention should be included in the scope of the hearing， “adminis‐trative detention” is clearly informed of the offender’s right to hear the type of punish‐ment， and collective discussion as a mandatory procedure for the decision to imposeadministrative detention of more than ten days. Secondly， it is necessary to clarify thecollective discussion procedure of initiating the procedure， the participants， the formof discussion and effectiveness and so on. First of all， the time of the collective discus‐sion should be limited to the penalty decision phase after investigation. Secondly， theparticipants of the collective discussion should include the head and deputy of theadministrative organ and other directors of the sub-divisions. Lastly， the collective dis‐cussion of the procedural design， should adhere to the principle of democratic central‐ism， to ensure that participants of the collective discussion can express opinions inde‐pendently on a comprehensive understanding basis. Thirdly， we should continue tooptimize the administrative procedure control mechanism. On the one hand， it is neces‐sary to set a mandatory model of procedural provisions and make clear the conse‐quences of sanction; on the other hand， it is necessary to give the parties concerned theright of refusal against administrative acts against the procedures， and to allow them tohave the right to resist peacefully the operation of obviously unlawful administration.Overall， the Draft’s comprehensive revision of the current Public Security Administra‐tion Punishment Law is a significant step forward in constructing the rule of law onadministrative punishment. With the implementation of the new Public SecurityAdministration Punishment Law， the concepts of the socialist rule of law with Chinesecharacteristics， such as human rights protection and due process， will be more deeplyrooted in people’s understanding， and the cause of the rule of law on public securityadministration punishment procedures in line with China’s national conditions will bemore stable and far-reaching.

KEY WORDS： public security administration punishment law （draft revision）;administrative punishment; penalty procedures; procedural control mechanism