管制性行政處分之思辨與建構

Reflection and Construction of Regulatory Administrative Sanctions

管制性不利處分從學理上用語成為司法實務上用語，進一步成為法定用語，顯見該用語概念有必要加以釐清。過往學界大都以行政罰為出發點，區別行政罰與管制性不利處分兩者的差異，而未從何謂管制性處分或管制性不利處分論理加以檢討。學理上對於管制性處分的概念，用語不一且眾說紛紜。本文認為除非屬行政罰法第2條第2項之管制性措施之外，在實定法上規定中雖有名稱與行政罰種類完全相同，仍應審視其規範依據的立法目的、規範對象、法條文義、法律體系架構及由其所顯現之價值決定而定其性質，並藉由德國警察與秩序法領域衍生的危害防止法理，嘗試建構管制性行政處分的分類、內容與效力等理論。

As the term ''Regulatory Adverse Sanctions'' has evolved from a theoretical term into a practical one, and further into a legal term, it becomes clear that the concept of this term needs to be clarified. Previously, academics have largely used administrative penalties as a starting point to distinguish between Administrative Penalties and Regulatory Adverse Sanctions, without examining the meaning of regulatory sanctions or the rationale behind them. Academics have used different terms and held a wide range of opinions on the concept of regulatory sanctions. This article argues that, except for regulatory measures under Article 2, Paragraph 2 of the Administrative Penalty Act, even if the positive law provisions have the same name as administrative penalties, their nature should still be determined by examining the legislative purpose, regulatory object, legal text, legal system structure, and the values they embody. Drawing on the harm prevention jurisprudence derived from the field of German police and order law, this article attempts to construct a theory of the classification, content, and effectiveness of regulatory administrative sanctions.