地方性法規設定行政處罰權限探析

An Analysis on the Administrative Punishment Authority Set by Local Regulations

本文立足當前地方人大及其常委會適應立法和改革決策相一致的需要，檢視制定地方性法規中適用《行政處罰法》的現狀。本文重點對其適用依法立法原則時，存在的同一違法行為行政處罰競合問題、未備案行政行為設置行政處罰合法性問題和行政體制改革中行政處罰主體確定問題進行了比較分析，提出適時修改《行政處罰法》、科學設置行政處罰規定、探索建立地方立法監督制度等建議，希望對地方人大正確把握立法權限、提高地方立法質量有所助益。

Based on the present situation of the local people's Congress and its Standing Committee to meet the need of consistency legislation and reform decisions-making as well as to formulate local regulations in application of the law of administrative punishment, this article pays more attention on the analysis on facing new problems when applying to the legislation principles in accordance with the law, such as the concurrence of the same offense, whether the administrative punishment should be set on without filing administrative act, and how to determine the legality of subject in the reform of the administrative system. Hoping to be helpful to correctly grasp the legislative authority of local people's Congress and further improving the quality of local legislation, several suggestions are being put forward as 'to revise the administrative punishment law, to set up scientific administrative penalties, and to explore the establishment of local legislative supervision system'.