过罚相当原则的司法适用研究

Study on the Judicial Application of the Principle of Proportionality between Offense and Punishment

摘要: 《中华人民共和国行政处罚法》第5条第2款规定：“设定和实施行政处罚必须以事实为依据，与违法行为的事实、性质、情节以及社会危害程度相当。”研究过罚相当原则的适用情况，首先需要明确其内涵。通说认为，该原则起源于刑法中的罪刑相适应原则，不过在行政法学界，对其的研究相对薄弱。但这并未改变一个现实——过罚相当原则在实践中，尤其是司法裁判中，常被援引作为裁判理由。在这样的背景下，过罚相当原则存在的潜在问题尚未得到清晰梳理，司法实践中的有益经验也未能被有效提炼。对此，对过罚相当原则的适用情况展开实践检视，旨在从实证分析的视角为完善该原则体系提供具体指引，揭示过罚相当原则相较于其他行政法原则，在行政处罚领域存在的特殊适用困境，并提出相对应的优化路径。

Abstract: Paragraph 2 of Article 5 of the Administrative Penalty Law of the People’s Republic of China stipulates: “The establishment and implementation of administrative penalties must be based on facts and commensurate with the facts, nature, circumstances, and social harmfulness of the illegal act.” To study the application of the principle of proportionality between offense and punishment, it is first necessary to clarify its connotation. It is generally accepted that this principle originates from the principle of suiting punishment to crime in criminal law. However, research on this principle in the field of administrative law is relatively inadequate. This, however, does not change the fact that the principle of proportionality between offense and punishment is often cited as a reason for judgment in practice, especially in judicial adjudication. Against this background, the potential problems of the principle have not been clearly sorted out, and the beneficial experiences in judicial practice have not been refined. In response, this study conducts a practical examination of the application of the principle of proportionality between offense and punishment, aiming to provide specific guidance for improving the principle system from the perspective of empirical analysis, identify the special application dilemmas of this principle in the field of administrative penalties compared with other administrative law principles, and propose corresponding optimization paths.