食品安全监管行政诉讼中过罚相当原则适用之研究

• 영문명: Research on the Judicial Application of the Principle of Suiting Penalty to Fault in Food Safety Administrative Penalties
• 발행기관: YIXIN 출판사
• 저자명: 张琳(Lin Zhang)
• 간행물 정보: 『Journal of east Asian law studies』제1권 제1호, 45~59쪽, 전체 15쪽
• 주제분류: 사회과학 > 교육학
• 파일형태: PDF
• 발행일자: 2024.06.30

국문 초록

Due to the abstract provisions of the principle of excessive punishment as a principle in legislation, there is often significant controversy over how to apply it in law enforcement and judicial practice. We found that there are some problems in China's food safety administrative penalty litigation, such as the overlapping application of the principle of equivalent punishment and the principle of proportionality, and the use of equivalent punishment clauses by courts to judge whether obvious misconduct has been achieved. This article aims to clarify its relationship with the proportionality principle and further propose that the relationship between the two should be distinguished in judicial application, that is, they are complementary rather than alternative applications. The principle of equivalent punishment for food safety cases has two levels of judicial application: measurement elements and measurement rules. In terms of measuring factors, they can be categorized into specific factors that can be grasped, such as criminal record, degree of fault, objective behavior, harmful consequences, attitude towards regret, and economic capacity. In terms of measuring rules, we will improve the discretionary rules of the principle of excessive punishment in food safety administrative penalty litigation from four aspects: supplementing the norms of the principle of excessive punishment, establishing and improving the standards for administrative penalty discretion, embedding the norms of the hazard evaluation system, and refining and clarifying the standards for obvious improper judicial review.

영문 초록

过罚相当原则在立法中的规定比较抽象，这就使得其在司法实践中的理解存在较大争议。在食品安全类案件过罚相当原则司法适用中，存在着过罚相当原则与比例原则适用重合、过罚相当条款被法院援引于判断明显不当是否成就等问题。针对理论上争议点主要在于过罚相当原则和传统比例原则之间的关系模糊问题，本文提出应当在司法适用中区分二者之间的关系，是互补适用而非替代适用。对于食品安全类案件过罚相当原则，其司法适用完善的面向包括衡量要素和衡量规则两个层次。在衡量要素方面，可以将其类型化为处罚前科、过错程度、客观行为、危害后果、悔错态度、经济能力等可以具体把握的因素。在衡量规则方面，通过从过罚相当原则的规范补充、行政处罚裁量基准的制定完善、危害性评价制度的规范嵌入、明显不当司法审查标准的细化明确等四个方面完善食品安全行政处罚诉讼中的过罚相当原则的裁量规则。

목차

Ⅰ.引言

Ⅱ.实践样态：食品安全监管处罚行政诉讼中过罚相当原则适用考察

Ⅲ.理论溯源：司法审查中过罚相当原则与比例原则的关系厘清

Ⅳ.优化进路：食品安全监管处罚行政诉讼中过罚相当原则的适用完善

Ⅴ.结论

키워드

Principle of Suiting Penalty to Fault Food Safety Judicial Review Disciplinary Factors 过罚相当原则 食品安全 司法审查 裁罚因素