行政處罰設定權的“同位保留”原理

懲罰手段氾濫和治理工具不足是立法機關設定行政處罰時始終面臨的矛盾。《行政處罰法》上的處罰措施設定權條款難以有效化解這一矛盾，它們需要在基本原理層面被重新理解。處罰的本質是對利益的剝奪，而剝奪不同利益的措施應受到不同對待。從設定權分配的角度考慮，處罰措施可按照剝奪憲法上的利益、法規範上的利益、法規範外的利益或剝奪利益核心部分、利益非核心部分兩種方式進行分類。同時，處罰措施設定權自身也可分為措施創設權、措施選用權和措施程度設定權三類。處罰措施設定權的分配應遵循同位保留原則。具體來說，措施創設權須由形成作為處罰物件之利益的規範或其同位元規範保留，也即剝奪憲法上的利益的措施由憲法保留，剝奪法規範上的利益的措施由相應層級的規範保留，剝奪法規範外的利益的措施無須保留。措施選用權應由創設該措施的規範的同位元規範保留，但基於功能主義考量，該項權力可由創設措施的規範或其同位元規範直接授予下位規範。措施選用權被下放時，獲得授權的主體在措施程度設定權上應受限制，不得規定剝奪利益核心部分的措施。

The proliferation of punitive measures and the lack of regulatory tools are the contradiction that legislators always face when setting administrative punishments. The provisions on the power to set punishment measures in the Administrative Punishment Law are hardly effective in resolving this contra-diction, and they need to be fundamentally reinterpreted. The essence of punishment is the deprivation of benefits, and measures that deprive different benefits should be treated differently. Considering the allo-cation of setting power, punishment measures can be classified in two ways: deprivation of constitutional interest, legal normative interest and interest outside legal norms or deprivation of core part of interest and non-core part of interest. At the same time, the power to set the punishment measures themselves can be divided into three categories: the power to create measures, the power to choose measures and the power to set the degree of measures. The allocation of the power to set punishment measures should fol-low the principle of same-rank reservation. Specifically, the power to create measures must be reserved by the norm thatgives rise to the interest which is the object of punishment or norms of the same rank. This means that measures depriving constitutional interests shall be reserved by the Constitution, meas-ures depriving legal normative interest shall be reserved by the norms of the corresponding rank, and measures depriving interest outside legal norms need not be reserved. The power to select measures should be reserved by the same-rank norms of the norm that created the measure, but based on function-alist considerations, the power may be delegated directly by the norm that created the measure or its same-rank norms to their subordinate norms. When the power to select measures is delegated, the sub-jects who are authorized to do so shall be limited in their power to set the degree of measures and shall not stipulate measures that deprive the core part of interest. -