地方立法设定行政处罚的权限困境与出路

Preliminary Study on the Predicaments of the Power to Establish Administrative Penalty in Local Legislation and the Solutions

行政处罚的设定本质上属于设定法律责任的立法权。依据我国《行政处罚法》的有关规定,地方立法行政处罚设定权可分为狭义的设定权(即创设权)和规定权,其同时受到我国《立法法》关于地方立法权限之规定的调整。当前,地方立法设定行政处罚面临明显的权限困境。对于创设权的行使,存在设定行政处罚种类的单一化、所设行政处罚的规制力度不足、无权设定“其他行政处罚”导致回应性缺失等问题,对规定权的运用陷入重复立法和合法性质疑的双重困境。在地方立法权扩容和我国《行政处罚法》被提上修改日程的双重背景下,有必要重新厘定地方立法行政处罚创设权配置的考量维度,合理划定地方立法行政处罚规定权运行的范围边界,并据此对我国《行政处罚法》作出修改,以回应学界关于行政处罚设定的“限权”与“扩权”之争,同时,从制度层面推动地方立法设定行政处罚权限困境的解决。

The establishment of administrative penalty is essentially the legislative power to establish legal liability. The power to establish administrative penalty in local legislation is divided into the narrow-sense establishment rights (i.e. creating power) and stipulating power according to the Administrative Penalty Law, and at the same time, governed by the provisions of the Legislative Law on the power of local legislation. At present, the local legislation is confronted with predicaments of power to establish administrative penalty. Regarding the exercise of creating power, there are problems such as the limited types of administrative penalty, the insufficient regulating force of the established administrative penalty, and the lack of power to establish other administrative penalties leading to the lack of responsiveness. At the same time, the exercise of stipulating power is trapped in two predicaments of repeated legislation and doubt in legality. Under the dual backgrounds that the local legislative power is expanded and the Administrative Penalty Law is put on the agenda of amendment, it is necessary to reconsider elements affecting the allocation of the power of creating administrative penalty in local legislation, and to reasonably delimit the boundary of exercising the power to stipulate administrative penalty in local legislation. Accordingly, the Administrative Penalty Law is amended as a response to the dispute in academia between "limiting the power" and "expanding the power" to establish administrative penalty, thus promoting the elimination of predicaments of power to establish administrative penalty in local legislation at the institutional level.