行政法傳統學理的反思與開展──行政處罰、裁罰性不利處分與管制性不利處分

Reflection and Development on Traditional Doctrines of Administrative Law–Administrative Penalty, Adverse Action of Punitive and Non-punitive Nature

行政罰法公布施行後，將部分行政罰之傳統學理予以實定法化，成為可直接適用之法條，有助於執法機關依法行政之提升。然而，若干法則在適用上仍不免滋生爭議。本文以裁罰性不利處分與管制性不利處分之概念區分、處罰法定原則，以及「依法令之行為」阻卻違法事由三項規範密度薄弱之議題為例，反思其在當代多元生活事實下，傳統內涵受維持之可能性，並探討其精緻化之續造空間。相對於後二者可透過法解釋學之操作及司法裁判，作有效之填補，前者則囿於立法結構因素，區辨難題始終存在。除非透過修法，否則不利處分是否屬行政罰，仍有待個案中對立法目的之細膩分析，難有一般性之準據。

On account of the promulgation and implementation of the Administrative Penalty Act of Taiwan, several traditional doctrinal principles of administrative penalties have been enacted and become applicable positive rules, which is helpful for the law enforcement authorities to put the principle of « Rule of Law» into practice. However, the application of certain principles is still controversial.
This article aims at dealing with 3 issues requiring further specification: firstly, the conceptual distinction between the « Adverse Actions of Punitive Nature » and « Adverse Actions of Non-punitive Nature » ; secondly, the principle of legality in the domain of administrative penalties, and last but not the least, the acts performed in accordance with law or order as legal justification. Having discussed the aforementioned topics, this research hopes to reflect on and sophisticate the traditional jurisprudential doctrines under contemporary world.
In sum, the article argues that comparing with the latter two, which can be effectively supplemented by operating the doctrinal study of law (Rechtsdogmatik) and judicial judgments, the former is limited by its own statutory structure, thus, it is permanently faced with difficulties in identification. Unless the authorities concerned revise the provision, the distinction between the « Adverse Actions of Punitive Nature » and « Adverse Actions of Non-punitive Nature » would still need to be analyzed in detail ad hoc, and merely impossible to propose a general criterion.