论首违不罚制度中行政裁量权的规制

On Rugulation of Impunity for First Violation in Administrative Discretion

2021年《行政处罚法》修订,正式将首违不罚制度以法律的形式明晰,为其在实践中的适用提供了法律依据。但是《行政处罚法》中有关规定较为笼统和抽象。“初次违法且危害后果轻微并及时改正的,可以不予行政处罚”的表述存在一定的解释空间,给行政机关在执法实践中的适用留有较大的自由裁量权,这极易侵犯当事人的合法权益。法律规定的行为要件不明确、行为效果裁量没有确定统一的标准、制度缺乏配套的程序性裁量基准致使裁量权行使失范。因此,应对“初次违法、危害后果轻微”等法律语言的内涵进一步明确并确定裁量的标准,尽可能压缩行政机关自主判断的空间、建立与完善行政裁量运作的法定程序。

When Administrative Penalties Law was revised in 2021, the first-violation impunity system was officially clarified in legal form, which provided a legal basis for its application in practice. However, the relevant provisions in this law are relatively general and abstract, and there is a huge room for interpretation for the expression “if the first violation of the law and the harmful consequences are minor and corrected in a timely manner”. And this gives administrative organizations a large discretionary power. Improper exercise of the discretionary power can easily infringe the legitimate rights and interests of the parties. There are three main reasons for the irregular exercise of the discretionary power. Firstly, the requirements of the law are not clear. Secondaly, there is no unified standard for the discretion of the behavior effect. And thirdly, the system lacks a supporting procedural discretion benchmark. Accordingly, some measures can be taken for this. The first is to further clarify the connotation of legal language such as “first violation of the law, and the consequences of harm are minor”. The second is to determine the standard of discretion, and the space for administrative organs to make independent judgments is minimized as much as possible. Lastly, we have to establish and improve legal procedures for the operation of administrative discretion.