权力扩张抑或原则坚守:应急状态下行政处罚的实践与规范

Power Expansionor Adherence to Principle:Practice and Norms of Administrative Punishment under Emergency State

应急状态下处罚政策与处罚立法实践呈现出以快速从重为表征的权力扩张趋势。无论从发挥处罚应急处置功能还是优化利用有限行政资源、遏制违法行为扩散性危害来看,行政处罚基于应急治理目的之应变具有相当合理性。然而,处罚政策与处罚立法的粗糙,使快速从重处罚在应急状态下的适用存在限度不明、裁量模糊及制约机制缺失的风险,这就要求行政机关在应急治理过程中遵循法定程序,在裁量基准和司法审查机制的规范下,审慎、克制地适用快速从重处罚。

Under the emergency state,the punishment policy and the punishment legislation practice show a trend of power expansion characterized by rapid and heavier punishment.Whether from the perspective of giving play to the emergency disposal function of punishment,optimizing the use of limited administrative resources and curbing the diffusive hazard of illegal acts,the response of administrative punishment based on the purpose of emergency governance is quite reasonable.However,due to the rough punishment policy and punishment legislation,there are risks of unclear limits,vague discretion and lack of restriction mechanism in the application of rapid and heavier punishment in the emergency state.This requires the administrative organs to follow the legal procedures in the process of emergency governance,and prudently and restrictively apply the rapid and heavier punishment under the norms of discretion benchmark and judicial review mechanism.