不予行政处罚论——基于我国《行政处罚法》第27条第2款规定之展开

发布时间：2018-10-22 08:13

【摘要】：我国《行政处罚法》第27条第2款中的不予行政处罚是指,某个违法行为同时满足"轻微"、"及时纠正"、"未造成危害后果"这三个要件时,行政机关不得给予行政处罚。然而,由于三者语义空间较大,对其具体内涵的厘定需借助个案进行。司法实践表明,法院在认定"轻微"时,通常将数量、主观恶意、场合、手段等要素纳入考虑;在认定"及时纠正"时,以"危害后果发生之前"的纠正视为及时,且不考虑当事人做出纠正行为时的主观状态;对"危害后果"的认定限定于"法律所保护的利益"。然而三个要件之间并非泾渭分明、非此即彼,因此,法院对于某个违法行为能否适用该款规定的判断通常是综合各项因素进行的,但就考量因素本身却并未形成统一的判断标准。此外,不应将不予处罚与免予处罚混为一谈,二者在是否具有"违法性"问题上有着根本区别;与刑法上的"不认为是犯罪"相比,二者仅在违法行为的"度"上有所区别,在"质"上皆属不具有"可罚性"的违法行为。
[Abstract]:In the second paragraph of Article 27 of our country's Administrative punishment Law, the administrative organ may not give administrative punishment when a certain illegal act satisfies the three elements of "minor", "timely correction" and "no harm consequence" at the same time. However, because the semantic space of the three is large, the determination of their specific connotations needs to be carried out with the help of individual cases. Judicial practice shows that when the court finds "minor", it usually takes into account the factors such as quantity, subjective malice, occasion, means, etc. In determining "timely correction", the correction before the occurrence of the harmful consequences is regarded as timely. It does not take into account the subjective state of the parties when they make corrective actions, and the determination of "harmful consequences" is limited to the "interests protected by the law". However, there is no clear distinction between the three elements and therefore the court's judgement as to the applicability of the provisions of that paragraph to an offence is usually based on a combination of factors, However, on the consideration of factors itself has not formed a unified standard of judgment. In addition, there should be no confusion between non-punishment and exemption from punishment, which are fundamentally different in terms of whether or not they are "illegal", and only in the "degree" of illegal acts, compared with "not considered a crime" in criminal law. In terms of "quality" are not "punishable" violations of the law.
【作者单位】：浙江大学光华法学院;
【分类号】：D922.11

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