行政处罚裁量基准的基本定位、制定义务与适用逻辑

Research into Basic Positioning,Formulation of Obligations and Applicable Logic of the Discretionary Standards for Administrative Punishments

行政处罚裁量基准是行政机关对行政处罚权自我规制的基本方法,基于其控制裁量权的功能性作用以及具“规范”外观,裁量基准是行政机关权力行使的直接依据。在同时满足合法性的实体要件与司法审查的程序要件时,裁量基准也是行政审判的“认知渊源”。具有行政处罚权的行政机关负有制定行政处罚裁量基准的“选择性义务”,即“一般情况下行政机关应当制定裁量基准,但特殊情况下行政机关可以不制定。”而在行政执法实践中,行政机关同时应秉持“严格适用为原则,偏离适用为例外”的态度。

The discretionary benchmark for administrative punishment is the basic method for administrative organs to self-regulate the power of administrative punishment,and based on its functional role in controlling discretionary power and its“standardized”appearance,the discretionary benchmark is the direct basis for the exercise of administrative authority's power.When satisfying both the substantive requirements of legality and the procedural requirements of judicial review,the discretionary criterion is also the“cognitive source”of administrative adjudication.Administrative organs with the power of administrative punishment have a“selective obligation”to formulate discretionary standards for administrative punishments,that is,“under normal circumstances,administrative organs shall formulate discretionary standards,but under special circumstances,administrative organs may not formulate them”.In the practice of administrative law enforcement,administrative organs should also uphold the attitude of“strict application as the principle,and deviation from application as the exception”,that is,when there are“other factors other than the factors to be considered in the discretionary benchmark itself”,the administrative organ may deviate from the application,but if the application of the discretionary standard will be“obviously improper”,the administrative organ“shall”not apply the provisions of the discretionary standard.In addition,when applying the discretionary criteria,the administrative organ must also base itself on the protection of the rights of the administrative counterpart or the administrative victim.