论海关行政处罚“一事不再罚”的原则

On the Principle of “No Repeated Penalty” in Customs Administrative Punishment

修订后的《行政处罚法》第29条规定:“对当事人的同一个违法行为,不得给予两次以上罚款的行政处罚。同一个违法行为违反多个法律规范应当给予罚款处罚的,按照罚款数额高的规定处罚。”理论和实务界对此概括表述为“一事不再罚”。法律设定“一事不再罚”,其目的是防止处罚机关滥用职权对行政相对人同一违法行为以同一事实理由处以几次行政处罚,进而保障行政相对人合法权益不受违法行政行为侵犯。在海关执法实践中,出现同一当事人的一个违法行为触犯不同法律规范,或违法行为处于持续或连续状态,或同一当事人的同一批货物既构成违规又构成走私,或同时违反两个以上监管规定的现象时,海关如何认定违法行为“事数”,就成为了判断是否违背“一事不再罚”原则的关键点,而“违法事数”确定的前提是梳理“违法形态”。因此,对“一事”“不再罚”等法律概念内涵外延的研究显得非常有必要。

Article 29 of the revised Law on Administrative Penalty stipulates: “The administrative fine shall not be imposed more than once for the same violation of law by a party.Where an illegal act violates several legal provisions, with each of them imposing a fine on such act, the provision that imposes the heaviest fine shall apply”,which is expressed as no repeated penalty for one offence in theory and practice.The legal establishment of this principle aims to prevent the competent authority from abusing its power to impose several administrative penalties on the same illegal act for the same factual reason, so as to protect the legal rights and interests of the party concerned from being infringed by the illegal administrative act.In the practice of customs law enforcement, a violation of the same party breaches different laws, or the illegal act lasts in a constant or the continuous state, or the consignment owned by the same party both violates regulations and constitute the crime of smuggling, or offends more than two regulations at the same time.Under these circumstances, how to decide the number of offences has become the key point to judge whether the principle of “no repeated penalty” is violated.The premise to determine the number of offences is to identify the form of offences.Thus it is very necessary to look into the connotation and extension of such legal concepts as “one illegal act” and “no repeated penalty”.