行政处罚种类扩张论批判

在此次《行政处罚法》修订过程中,处罚种类扩张论得到广泛支持。学者们将实践中出现的一些新型行为措施定性为行政处罚,并且基于提升公共治理能力、规范行政公权力的良好愿景,主张扩张处罚种类。修订通过后的《行政处罚法》有限度地扩张了处罚种类。然而,从行政处罚内涵和立法政策两个方面进行考察可以发现,处罚种类扩张论并不合理。一方面,通过考察刑罚处罚的特征和狭义行政管理权与行政处罚权之区别可以发现,科处额外负担和非难是处罚的本质要素,典型非处罚行为应当排除在行政处罚之外。另一方面,提升公共治理能力与扩张行政处罚种类并无直接关系,为了规范公权力而扩张处罚种类之考量也将随着行政法制的不断完善而逐渐式微,贸然扩张处罚种类可能造成法律适用上的障碍,因而中间类型行为不宜纳入处罚种类。确立“少而精”的处罚种类,才有利于实现对行政处罚的专业性精准规制。

Criticism on the Expansion of the Types of Administrative Punishment

In the process of the revision of the Administrative Punishment Law,the theory of expanding the types of punishment has been widely supported.Scholars define some new behavior measures in practice as administrative punishment,and advocate expanding the types of punishment based on the good vision of improving public governance ability and standardizing the administrative public power.The revised Administrative Punishment Law has expanded the types of punishment to a limited extent.However,from the two aspects of the connotation of administrative penalty and legislative policy,we can find that the theory of expanding the types of punishment is not reasonable.On the one hand,by examining the characteristics of penalty and the difference between the narrow sense of administrative power and the power of administrative punishment,we can find that the extra burden and censure are the essential elements of punishment,so the typical non-punishment behavior should be excluded from the administrative punishment.On the other hand,there is no direct relationship between the improvement of public governance ability and the expansion of the types of administrative penalties.The consideration of expanding the types of punishment to regulate public power will gradually decline with the continuous improvement of administrative legal system.Rashly expanding the types of punishment may cause obstacles in the application of law,so the intermediate type of behavior should not be included in the category of punishment.The Administrative Punishment Law should establish“less but better”punishment types to realize the professional and accurate regulation of administrative punishment.