论行政处罚“首违不罚”的制度完善

On the Improvement of the “No Punishment for First-Time Violation” System of Administrative Penalty

摘要: 2021年新《行政处罚法》规定了“首违不罚”制度。在新法出台之前，“首违不罚”已经在一些领域得到了适用，新法的规定则进一步促进了“首违不罚”制度的发展。“首违不罚”制度彰显了以民为本的理念，体现了行政处罚与教育相结合原则，有利于缓和执法者与行政相对人的关系，促进人性化执法，具有重大的意义。但“首违不罚”制度存在概念界定不明确、地方之间立法差异过大、与相关制度不能很好的衔接及可能会损害公共利益与第三人利益的问题。对此，应要明确“首违不罚”的概念，协调不同行政区域的立法，完善“首违不罚”制度与其他制度的衔接并强化行政执法过程中的监督。

Abstract: Law of the People’s Republic of China on Administrative Penalty (2021 Revision) provides for the “No Punishment for First-time Violation” system. Before the introduction of the law, “No Punishment for First-time Violation” has been widely applied, and the provisions of the law promote the development of the “No Punishment for First-time Violation” system. The system highlights the concept of people-oriented, embodies the combination of penalty with education principle. The system has great significance, because it is helpful to easing the relationship between law enforcement and administrative counterparts, to promoting humane law enforcement. However, the system has several problems, i.e., the definition of the concept is unclear, there are too much difference between legislations of different regions, the connections between this system and other relevant systems is not well, and the use of this system may harm the public interest and the interests of third parties. To solve these problems, we should clarify the concept of “No Punishment for First-time Violation”, coordinate the legislation of different administrative regions, improve the connections between this system and other relevant systems, and strengthen the supervision mechanism in the process of administrative law enforcement.