应受行政处罚行为模型论

On the Model of Acts Deserve Administrative Penalty

行政法学应当为应受行政处罚行为的判定提供类似犯罪成立要件理论一样的思维模型。这种跨学科的方法论借鉴,有历史和现实层面的双重支撑,行政处罚与刑罚非但在历史上具有同一性,并且还有法益同质性和规范同义性。因此,应受行政处罚行为的成立要件可以和犯罪成立要件一样,有一个整套的判断模型。从比较法的观察来看,它主要包括构成要件的该当性、违法性和有责性三项要素。它们相互之间是阶层化的逻辑关系,各自具有独立的评价功能;并且相较于刑罚而言,亦具有行政处罚的独特属性。在功能和价值上,模型化的应受行政处罚行为成立要件,可使《行政处罚法》获取应有的总论角色,方便类型化思维在行政处罚归责过程中推广,从而实现行政处罚权实体性规范效果。

Administrative law should provide a thinking model similar to the theory of constitutive elements of crime for the determination of acts deserve administrative penalty. This kind of interdisciplinary methodological reference has both historical and practical support. Administrative penalty and punishment not only have the identity in history, but also have the homogeneity of legal interests and the synonymy of norms. Therefore, the constitutive elements of acts deserve administrative penalty can be the same as the constitutive elements of crime, establishing a complete judgment model. Judging from the observation of comparative law, it mainly includes the three factors of constitutive elements, namely, conformity, illegality and liability. They are in a hierarchical logical relationship with each other, each has an independent evaluation function, and compared to punishment, they also have the unique attributes of administrative penalty. In terms of function and value, the modeled constitutive elements of acts deserve administrative penalty are essential, which enable the Administrative Penalty Law to acquire its due general status, and facilitate the promotion of typified thinking in the process of administrative penalty imputation, thereby realizing the power of administrative penalty substantial normative effect.