没收违法所得处罚中依法退赔制度的解释论

Interpretative Theory of the Legal Refund System in the Penalty of Confiscation of Illegal Income

没收违法所得处罚中依法退赔制度的构建将公益性和私益性有效兼容,是对公法和私法相互交融的实践需求的回应,其理论基础在于私权优先保护的价值理念和“国不与民争利”的民本思想。依法退赔制度的适用条件有三:法律责任竞合的存在、当事人有违法所得和当事人依法应当承担财产性民事责任。依法退赔制度在推进国家治理体系和治理能力现代化进程中的价值蕴涵主要表现为:体现了以人民为中心的法治理念,落实了比例原则的要求,强化了行政处罚公正原则和实现优化营商环境的重要举措。从逻辑关系来看,依法退赔制度不是没收违法所得的前置性行政程序,当事人依法退赔的款项是没收违法所得的事实构成要件,其直接影响没收违法所得处罚的法律效力。通过行政处罚处理期限中止制度的完善和依职权行政调解的嵌入有利于在行政处罚程序中直接落实依法退赔制度和保证没收违法所得处罚的合法性,最后完善财政部门返还款项的程序,充分发挥财政部门返还款项制度的兜底性和补充性的功能。

The construction of legal refund system in the punishment of confiscation of illegal income is effectively compatible with public and private interests,which is a response to the practical needs of public law and private law,and its theoretical basis lies in the value concept of priority protection of private rights and the idea of "the state does not compete with the people for profits".There are three conditions for the application of the legal refund system:the existence of competing legal liabilities,the existence of illegal proceeds,and the fact that the parties concerned should bear property civil liabilities in accordance with the law.The value of the refund system in promoting the modernization of the national governance system and governance capacity is mainly manifested in the following:embodies the people-centered rule of law concept,the implementation of the principle of proportionality,strengthened the principle of fairness of administrative penalties and the realization of the optimization of the business environment is an important measure.From the viewpoint of logical relationship,the system of refund according to law is not the confiscation of illegal income of the antecedent administrative procedures,the party according to law to refund the amount of money is the confiscation of illegal income of the factual constituent elements,which directly affects the confiscation of illegal income of the legal effect of punishment.Through the improvement of the administrative penalty processing time limit suspension system and ex officio administrative mediation embedded in the administrative penalty procedure is conducive to the direct implementation of the refund system and to ensure the legality of the confiscation of illegal income penalties,and finally to improve the procedures of the financial sector to return the money to give full play to the financial sector to return the money to the system's function of the bottom-up and complementary.