重庆理工大学学报2025，Vol.39Issue(8)：197-205,9.DOI:10.3969/j.issn.1674-8425(s).2025.04.019
《行政处罚法》基础性法律地位的证成
Justifying the fundamental legal status of the Administrative Penalty Law:A perspective based on excessive punishment for minor infractions
摘要
Abstract
The frequent phenomenon of excessive punishment for minor infractions in administrative enforcement reflects a lack of clarity in practical understanding regarding the regulatory orientation of the Administrative Penalty Law.In academic discourse,there are three representative viewpoints on this issue,which are the Basic Law Theory,the General Provisions Theory,and the Fundamental Law Theory.The Basic Law Theory holds that the law mandates punishment when explicitly provided,and that departmental administrative law takes precedence.The General Provisions Theory posits that specific provisions of departmental administrative law may be applied in conjunction with the Administrative Penalty Law,allowing for penalty reduction in the absence of explicit legal provisions.The Fundamental Law Theory,on the other hand,argues that as a fundamental law,the Administrative Penalty Law holds a"source"versus"stream"relationship with other non-fundamental departmental administrative legislation,thus giving precedence to fundamental law over non-fundamental law.Through comparative analysis,it appears that the Basic Law Theory,which upholds the rule of"mandatory punishment when explicitly provided",risks undermining the Administrative Penalty Law.The General Provisions Theory,which suggests penalty reduction when the law is silent,has been criticized for encouraging administrative bodies to evade general law.The Fundamental Law Theory provides the most academic and practical guidance.However,as a fundamental law,the Administrative Penalty Law also faces challenges from departmental administrative legislation and local regulations.During a period of further comprehensive reform,solidifying the status of the Administrative Penalty Law as fundamental law and optimizing the business environment are crucial to the systematic construction of administrative penalties.This can be achieved through the preferential application of relevant provisions of the Administrative Penalty Law,the appropriate expansion of penalty reduction clauses,and adjustments to the types and classifications of administrative penalties.关键词
《行政处罚法》/"小过重罚"问题/行政处罚/基础性法律Key words
Administrative Penalty Law/excessive punishment for minor infraction/administrative penalty/fundamental law分类
社会科学引用本文复制引用
向立,冉崇潇..《行政处罚法》基础性法律地位的证成[J].重庆理工大学学报,2025,39(8):197-205,9.基金项目
浙江省法学会重点课题"加快形成新质生产力的法治保障研究"(2024NA01) （2024NA01）
