On The Boundary of Setting Administrative Punishment By Local Regulations

Abstract

Article 12, Paragraph 3 of the newly revised "Administrative Penalty Law" officially establishes the "supplementary administrative penalty setting power" system, granting local regulations the legislative authority to supplement and create administrative penalties within the existing regulatory fields of higher-level laws, and substantially expanding the regulatory capacity of administrative regulations and local regulations in the field of administrative penalty setting. The legislative purpose of this provision is to respond to the institutional demands in complex legislative practices. However, there are significant differences in the academic community's normative interpretation of this provision: in a narrow sense, it is advocated that the supplementary setting must not break through the framework of the existing types of illegal acts in higher-level laws, while in a broad sense, it is recognized that local regulations can create new types of illegal acts. However, there are different levels of understanding regarding the specific scope of creation. Based on a systematic interpretation of the normative connotation of Article 12, Paragraph 3 of the Administrative Penalty Law, which states that "laws and administrative regulations do not provide for administrative penalties for illegal acts", this article advocates breaking through the traditional power-controlling thinking paradigm and constructing a three-dimensional review standard system that includes the legitimacy of the purpose, the necessity of the means, and the legality of the procedure, with the aim of consolidating the legal basis for the supplementary setting power of administrative penalties.