重庆市烟草专卖法律问题与对策研究
发布时间：2019-06-04 20:32
【摘要】：随着法律制度的不断健全和完善,烟草行业在中国法治进程加快的今天,不断壮大发展。从宋代开始,我国就对烟草这一特殊商品实行了行业垄断生产、销售,行业发展到现在的专卖专营,可以说我国一直都重视烟草行业的特殊性,但在烟草专卖法律体系不断发展的今天,也存在一些问题,中央与地方存在立法上的分歧,如行政主体的权限规定不一等,但地方由于实际操作的需要对《烟草专卖法》和《烟草专卖实施条例》规定的权限进行改变,地方在立法方面超越上位法,自己独立制定相关规定,这样的做法不得不说存在一定的问题,在实践中,地方烟草行政主管部门在行政执法的过程中也存在一些问题,行业甚至在有的时候超越执法权限,缺乏依法行政意识,给行政相对人带来一些损失等,在利益和法律规定冲突的时候,行业由于自身政企合一的体制,而注重烟草公司的发展,忽略了烟草公司的另一层身份即烟草专卖行政主管部门,可以说在现有的体制下,是存在一些问题。 重庆市烟草专卖行政主管部门想要全面推行法治烟草建设,法治烟草建设的实质就是提高整个行业的法治水平,由于烟草行业的运作对法律的依赖程度相当高,所以法治水平的提高是整个法治烟草建设的核心,法治烟草的建设中心内容之一就是法律风险事件的防范,在行政执法过程中,法律风险事件的防范、应对,将会直接关系到行业的切身利益,这里的利益不仅仅是指财产方面,其实在不断规范的市场环境下,重庆烟草更加注重的是行业形象的打造,法治形象才是法治烟草建设追求的最高利益。 法律风险防范机制的建立是法治烟草建设的第一核心内容,防范机制就是针对风险事件进行统一管理,烟草专卖行政执法法律风险事件是指烟草企业在对外进行行政执法过程中由于行政执法行为违反相关法律法规等规定的事件,该事件可能导致烟草企业或个人承担不利的法律后果,此种事件被定义为法律风险事件。 法律风险防范机制是重庆法治烟草建设的核心内容,专卖行政执法是烟草行业区别于其他行业的根本,法律风险防范的核心就是以行业对外执法为核心的一种法律风险防范,2014年,重庆烟草企业出台了一系列法律风险防范措施,其中以重庆烟草商业企业法律风险识别清单为核心,基本构筑了商业企业部分的法律风险防范体系,虽然初步建立了该体系,但法律风险事件一旦发生,没有一套法律风险事件的应对措施,法律风险事件发生后的应对措施亟待完善。 行政执法法律风险应对是重庆烟草法律风险防范的一大发展,法律风险防范是所有岗位的事前法律风险防范,而行政执法法律风险应对只是行政执法方面,法律风险事件出现后的应对措施。当然在实践中,专卖局实施行政行为后,行政执法相对人会自主地通过复议、诉讼、网络媒体渲染等手段进行救济,重庆烟草专卖局可以通过该行政执法法律风险应对管理进行处理,在一定程度上保障法律风险事件不会给行业带来损失,尤其是形象的损害。
[Abstract]:With the perfection of the legal system and the rapid development of the tobacco industry in the process of the rule of law in China. From the beginning of the Song Dynasty, our country has carried out the industry monopoly production, sale and industry development to the special commodity of tobacco, and it can be said that our country has always attached great importance to the particularity of the tobacco industry, but there are some problems in the development of the tobacco monopoly law system. The central and local differences in the legislation, such as the administrative subject's authority, are not first, but where the authority under the tobacco monopoly law and the tobacco monopoly enforcement regulation is changed as a result of the actual operation, the place goes beyond the upper-position law in the field of legislation. In practice, the local tobacco administrative department has some problems in the course of administrative law enforcement, and the industry has even surpassed the law enforcement authority in some time, and lacks the consciousness of administration according to law. in that case of conflict between the interests and the law, the industry, due to the system of the one-in-one of the government and the enterprise, pays attention to the development of the tobacco company, and ignores the other identity of the tobacco company, namely the department of tobacco monopoly administration, and can say that under the current system, There are some problems. The tobacco monopoly administration department in Chongqing wants to carry out the rule of law tobacco construction in an all-round way, and the essence of the tobacco construction of the rule of law is to improve the rule of law of the whole industry, and because the operation of the tobacco industry is very dependent on the law High, so the improvement of the rule of law is the core of the whole rule of law tobacco construction. One of the content of the construction center of the rule of law is the prevention of the legal risk events. In the course of administrative law enforcement, the prevention and response of the legal risk events will be directly related to the cut-off of the industry. The benefit is not only the property, but in the constantly regulated market environment, Chongqing tobacco is more focused on the creation of the image of the industry, and the image of the rule of law is the highest interest in the pursuit of the rule of law tobacco construction. The establishment of the legal risk prevention mechanism is the first core content of the rule of law tobacco construction. A management, tobacco monopoly administrative law enforcement legal risk event refers to the event that the tobacco enterprise is in the process of carrying out the administrative law enforcement in the outside, which may lead to the disadvantage of the tobacco enterprise or the individual due to the violation of the relevant laws and regulations by the administrative law enforcement action. The law consequence, which is defined as the legal wind The legal risk prevention mechanism is the core of the tobacco construction of the rule of law in Chongqing, and it is the core of the tobacco industry to distinguish the tobacco industry from other industries. The core of the legal risk prevention is the legal risk prevention which is the core of the industry's foreign law enforcement. In 2014, Chongqing tobacco enterprises issued a series of legal risk prevention measures, including the core of the legal risk identification list of Chongqing tobacco commercial enterprises, and basically constructed the legal risk prevention system of the commercial enterprise part. Although the system was initially established, the legal risk Once a member has taken place, there is no one set of countermeasures to the legal risk event, and the response measures after the occurrence of the legal risk event The administrative enforcement legal risk should be a major development of the risk prevention of the tobacco law in Chongqing, and the legal risk prevention is the prior legal risk prevention of all positions, and the legal risk of the administrative law enforcement is only the administrative law enforcement and the legal risk events In practice, after the enforcement of administrative act, the administrative enforcement of the administrative law enforcement will make relief through the means of reconsideration, litigation, network media rendering and so on, and the Chongqing Tobacco Monopoly Bureau can adopt the legal risk of the administrative law enforcement. to deal with the management, to a certain extent guarantee that the legal risk events will not cause losses to the industry, especially
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.294;F426.8
本文编号：2492981
[Abstract]:With the perfection of the legal system and the rapid development of the tobacco industry in the process of the rule of law in China. From the beginning of the Song Dynasty, our country has carried out the industry monopoly production, sale and industry development to the special commodity of tobacco, and it can be said that our country has always attached great importance to the particularity of the tobacco industry, but there are some problems in the development of the tobacco monopoly law system. The central and local differences in the legislation, such as the administrative subject's authority, are not first, but where the authority under the tobacco monopoly law and the tobacco monopoly enforcement regulation is changed as a result of the actual operation, the place goes beyond the upper-position law in the field of legislation. In practice, the local tobacco administrative department has some problems in the course of administrative law enforcement, and the industry has even surpassed the law enforcement authority in some time, and lacks the consciousness of administration according to law. in that case of conflict between the interests and the law, the industry, due to the system of the one-in-one of the government and the enterprise, pays attention to the development of the tobacco company, and ignores the other identity of the tobacco company, namely the department of tobacco monopoly administration, and can say that under the current system, There are some problems. The tobacco monopoly administration department in Chongqing wants to carry out the rule of law tobacco construction in an all-round way, and the essence of the tobacco construction of the rule of law is to improve the rule of law of the whole industry, and because the operation of the tobacco industry is very dependent on the law High, so the improvement of the rule of law is the core of the whole rule of law tobacco construction. One of the content of the construction center of the rule of law is the prevention of the legal risk events. In the course of administrative law enforcement, the prevention and response of the legal risk events will be directly related to the cut-off of the industry. The benefit is not only the property, but in the constantly regulated market environment, Chongqing tobacco is more focused on the creation of the image of the industry, and the image of the rule of law is the highest interest in the pursuit of the rule of law tobacco construction. The establishment of the legal risk prevention mechanism is the first core content of the rule of law tobacco construction. A management, tobacco monopoly administrative law enforcement legal risk event refers to the event that the tobacco enterprise is in the process of carrying out the administrative law enforcement in the outside, which may lead to the disadvantage of the tobacco enterprise or the individual due to the violation of the relevant laws and regulations by the administrative law enforcement action. The law consequence, which is defined as the legal wind The legal risk prevention mechanism is the core of the tobacco construction of the rule of law in Chongqing, and it is the core of the tobacco industry to distinguish the tobacco industry from other industries. The core of the legal risk prevention is the legal risk prevention which is the core of the industry's foreign law enforcement. In 2014, Chongqing tobacco enterprises issued a series of legal risk prevention measures, including the core of the legal risk identification list of Chongqing tobacco commercial enterprises, and basically constructed the legal risk prevention system of the commercial enterprise part. Although the system was initially established, the legal risk Once a member has taken place, there is no one set of countermeasures to the legal risk event, and the response measures after the occurrence of the legal risk event The administrative enforcement legal risk should be a major development of the risk prevention of the tobacco law in Chongqing, and the legal risk prevention is the prior legal risk prevention of all positions, and the legal risk of the administrative law enforcement is only the administrative law enforcement and the legal risk events In practice, after the enforcement of administrative act, the administrative enforcement of the administrative law enforcement will make relief through the means of reconsideration, litigation, network media rendering and so on, and the Chongqing Tobacco Monopoly Bureau can adopt the legal risk of the administrative law enforcement. to deal with the management, to a certain extent guarantee that the legal risk events will not cause losses to the industry, especially
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.294;F426.8
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