论行政处罚的主从罚体系建构——以没收制度为切入点

本文以没收制度为切入点,在制度性特征的基础上,分析了没收因惩罚功能的相对缺弱所导致的“价值错位”及从属性地位;并指出,应当确立起主从罚区分的处罚种类体系,回应处于“从罚”地位的没收;对于“从罚”的司法适用,应当遵循“与主罚并科为原则、单独宣告为例外”的规则,从而规范行政处罚的立法与实践;阐述我国具备建立这种主从罚区分的复线式体系的可能性与必要性。

On Constructing the Main-subordinate Category System of Administrative Punishment: Taking Confiscation As Approach

The main-subordinate category system of administrative punishment,which is applied in legislation of many continental countries and areas,deserves being transplanted to China.Choosing confiscation as approach,this paper analysis its value dislocation because of lack of punishment function,and points out the emergency to construct the main-subordinate category system to response its subordinate position.Principle of "normally following main punishment and exceptionally used single" needs to be applied as to regulate the legislation and experience of administrative punishment.This kind of system is available to China under considerations of possibility and necessity.