When the system of"not imposing administrative penalties"is examined in the context of law enforcement practice,it can be found that the system is currently beset with the practical prob-lems of confusing identification criteria and lack of law enforcement procedures,which further aggra-vate the difficulties of practical application.It is also the case that article 33,paragraph 1,of the Ad-ministrative Penalties Law provides in the same paragraph that administrative penalties"shall"be withheld and"may"be withheld,resulting in a failure in practice to make a clear distinction between"shall"be withheld and"may"be withheld,which involves the interpretation of uncertain legal con-cepts,and the inclusion of both in the discretionary space of the administrative organ.should"and"may not impose administrative penalties",which are discretionary in nature,are not clearly differenti-ated in practice,and both are included in the administrative organ's discretionary space.China's sub-stantive law on"should"not administrative penalty provisions in a scattered manner,and in the estab-lishment of the constituent elements of the academic community has not yet reached agreement,so it is not possible to form a unified understanding of the administrative law enforcement application of the correct to adopt,and has not yet built up the normative application of the environment.In order to ef-fectively guide the specific application of administrative law enforcement,the construction of the"should"not be administrative penalty behaviour of the double logic connotation:in the formal level,the administrative offence is not established;in the substantive level,if there is not punishable rea-sons to exclude the illegality of the behaviour.In this regard,it is necessary to clarify the normative group of the system of"should"not be administrative penalty,and accordingly put forward the op-timisation path of the system of not administrative penalty in China.
关键词
行政处罚法/应当不予处罚/构成要件/不予处罚清单
Key words
Administrative Punishment Law/should not be punished/constituent elements/list of impunity
维普
万方数据