The Conceptual Reflection And Reconstruction Of Administrative Penalty

Administrative penalty is not only an important type of administrative act,but also a law enforcement means widely used by administrative organs in law enforcement practice.However,the meaning of such an important legal concept has not been completely clarified.This is mainly because the Administrative Penalty Law has no conceptual provision for administrative penalties,only through Article 8 lists the six typical types of administrative penalty by name form,supplemented by other types of administrative penalty stipulated by laws and administrative regulations.Such a legislative mode brings the problem of unclear connotation and vague extension of the concept of administrative penalty,and thus leads to the difficult problem of defining administrative penalty in practice,weakens the control function of the Administrative Penalty Law.Therefore,it is necessary to trace back to the source,clarify the concept of administrative penalty,clarify its definition standard and extension scope.In order to solve the problem of defining administrative penalty,the academic community has put forward the form conformity theory,the substance requirements theory,and the functional consideration theory.However,due to the rigidity of the form conformity theory,the diversity of the substance requirements theory,and the subjectivity of the functional consideration theory,the three theories have failed to reach consensus in the academic community.In fact,the three theories are not opposite to each other,but can provide methods or standards for the definition of administrative penalty at different levels.We can reasonably arrange the relationship among the three in a systematic way to realize the scientificity of the definition method of administrative penalty,that is,at the legislative level,the substance requirements theory should be taken as the leading role to make the form conformity theory more scientific.Meanwhile,the functional consideration theory should be supplemented to provide practical experience for the improvement of the substance requirements theory and the form conformity theory.In the aspect of legal practice,establish the priority position of form conformity theory,supplement it with substance requirements theory and functional consideration theory.Therefore,a methodology system of two layer complementary administrative penalty definition is formed.To clarify the concept of administrative penalty,it is necessary to take the substance requirements theory as the lead,refer to the legislative practice of Administrative License Law and Administrative Compulsion Law,and determine the conceptual provisions of administrative penalty by extracting the essential elements,conditional elements and objective elements of administrative penalty.At the same time,abandon the listing method of name form adopted in Article 8 of the Administrative Penalty Law,and change it to take the rights and interests as the standard,i.e.person,property,reputation,and classify the extension of administrative penalty.The article of other types of administrative penalties stipulated by laws and administrative regulations is the bottom line to realize the extension of the types of administrative penalties.The concept of administrative penalty clauses,ultimately need to be specifically applied to the distinction between administrative acts,in order to be deepened and show value.