破解罰沒財政的法治路徑

近年來罰沒財政問題凸顯，已成為亟待攻克的法治難題。以“事實—價值—規範”為框架分析罰沒財政的成因，分別表現為罰沒泛化主義、價值認知錯位以及整體擘畫的缺乏。鑒於罰沒財政游走於權力與財政兩域，可分域探求其破解的法治路徑。路徑一是應突破罰沒權力觀的單向性，深度揭示罰沒的功利本性，對此可汲取修復性正義和古代刑罰觀的智慧，築牢罰沒權力的價值根基。路徑二是鑒於罰沒與稅收的財政性迥異，罰沒收入應與財政收入脫鉤，罰沒支出也應與財政支出隔離，並應建構與其財政性相契合的罰沒收支體制與經費保障機制。破解之權力路徑內隱正當性基礎，從道義層面揭示出罰沒權力施之於民的理由和根據。破解之財政路徑外顯合法性方案，從技藝層面凝練出罰沒收支運行規範的程式和安排。權力路徑與財政路徑是唇齒相依的，二者不可偏廢，權力路徑是破解罰沒財政難題的基礎，但離不開財政路徑的默契配合。

In recent years, the issue of penalty-based revenue (fines and confiscations) has become increasingly prominent and has emerged as an urgent challenge to the rule of law. An analysis of its causes through the framework of“fact-value-norm”reveals three dimensions: the proliferation and overextension of penalties and confiscations in practice, a distortion in value perception, and the absence of an overarching institutional design. Given that penalty-based revenue operates at the intersection of state power and public finance, its resolution requires a differentiated, domain-specific rule-of-law approach. The first path concerns the conception of punitive and confiscatory power. It must transcend a sided understanding and critically unveil the instrumental and utilitarian nature of such power. In this regard, insights may be drawn from restorative justice and traditional penal philosophy to consolidate the value foundation of punitive authority. The second path recognizes the fundamental fiscal distinction between penalties and taxation. Revenue derived from penalties and confiscations should be decoupled from general fiscal revenue, and the corresponding expenditures should be segregated from ordinary fiscal spending. A revenue and expenditure system tailored to the specific fiscal character of penalties and confiscations, along with a compatible funding guarantee mechanism, should be established. The power-oriented path contains an implicit foundation of justification, revealing at the normative and moral level the reasons and grounds for the state's imposition of penalties upon citizens. The fiscal path, by contrast, provides an explicit scheme of legality, articulating at the technical level the procedural structures and operational arrangements governing the revenue and expenditure of penalties and confiscations. These two paths are interdependent and must not be separated. While the power-oriented path constitutes the foundation for resolving the problem of penalty-based revenue, it cannot function effectively without the coordinated support of the fiscal path.