論行政處罰的豁免

On the Exemption of Administrative Punishment

豁免規則對於《行政處罰法》而言是一個亟待法內續造的制定法漏洞。其構成應受行政處罰行為的獨立要件，而非量罰情節。類推適用刑法中的違法性阻卻事由進行豁免，符合事物的本質，可為《行政處罰法》的基本原則所包容。參照刑法中的違法性阻卻事由，行政處罰得以因被害人承諾、推定的承諾、假定的承諾、自損行為和危險接受等因法益性闕如阻卻違法的事由和正當防衛、緊急避險、法令行為、正當業務行為、自救行為、行政許可、義務衝突等基於法益衡量阻卻違法的事由而豁免。認定各個事由時，應當注意區分行政法益與刑法法益，進行個別化法益權衡。

The exemption rule is a loophole in Administrative Punishment Law which needs to be renewed within the law. It is the independent element of the acts deserving administrative punishment, not the circumstance of punishment. Analogizing the grounds for elimination of illegality of criminal law is in line with the nature of administrative punishment, which can also be contained by the basic principles of Administrative Punishment Law. With reference to the grounds for elimination of illegality of criminal law, the administrative punishment can be exempted due to the absence of legal interests such as the victim’s commitment, presumptive commitment, assumed commitment, self-loss behavior and risk acceptance as well as the measure of legal interests such as justifiable defense, emergency avoidance, act of law, act of legitimate business, act of self-rescue, administrative licensing, conflict of obligations. In determining each cause, attention should be paid to the distinguishing administrative legal interests from criminal legal interests, and weighing individual legal interests.