首违不罚的裁量与法律规制

Discretion and Legal Regulation of First Violation Non-Punishment

摘要: 首违不罚构成要件中，首次违法的判断标准不同、轻微违法行为的范围不同、及时改正的说理程度不同和危害后果轻微的理解误差直接导致地方行政机关的适用混乱。裁量是导致上述问题的重要原因。但是法治所要求的并不是消除广泛的裁量，而是法律应当能够规制它的行使。首违不罚制度在各地立法执法实践的基础上上升为国家立法。因此，突破首违不罚制度构成要件的局限，以149个税务行政处罚决定书为样本，从地方适用首违不罚制度的视角进行分析，有利于发现首违不罚的适用困境，进而进行法律规制。

Abstract: Among the constitutive elements of First Violation Non-punishment, the different judgment standards for the first violation, the different scope of minor violations, the different reasoning degree of timely correction and the slight understanding error of harmful consequences directly lead to the confusion in the application of local administrative organs. Discretion is an important reason for the above problems. But what the rule of law requires is not to eliminate extensive discretion, but that the law should be able to regulate its exercise. The system of no punishment for the first violation has risen to national legislation on the basis of local legislation and law enforcement practice. Therefore, breaking through the limitations of the constitutive elements of the system of First Violation Non-punishment, taking 149 decisions on tax administrative punishment as samples, and analyzing from the perspective of local application of the system of First Violation Non-punishment, is conducive to finding the application dilemma of First Violation Non-punishment, and then carrying out legal regulation.