论行政处罚的适用条件及其与刑罚的适用关系

The Application Conditions of Administrative Penalty and the Application Relationship with Criminal Penalty

行政处罚适用的核心条件是法律、法规或者规章规定的违反行政管理秩序的行为,但以尚未构成犯罪为临界点。行政处罚和刑罚同为公法上的制裁手段,都是以受惩戒者向以国家所代表的社会承担责任为落脚点,因而在功能和价值取向方面存在一致性。针对行为既违反行政管理秩序又构成犯罪的竞合现象,就行政处罚与刑罚在适用关系上结合现行法律法规进行应用理论分析,行政处罚与刑事处罚原则上不能同时适用,行政违法构成犯罪案件应当归属司法权主管范围,而行政机关只能就那些诸如吊扣证照等专属行政职权与职责内容的法律责任追究行使独立的案件主管权。

The core condition of administrative penalty is the action which violates laws, regulations and rules, but not yet constitutes a crime. Administrative and criminal penalties are both sanctions based on the public law, both of which are based on the social responsibility represented by the state, and have the same functions and value orientation, therefore. If an action violates both administrative and criminal law, concerning law theories on the relations between the two penalties, combining with existing laws and regulations, should be that they cannot be applied together, criminal cases belong to the competence of judicial power, and the administrative authorities can only exercise its jurisdiction over administrative legal responsibility, such as suspension of license.