Research on the Conditions of Application and Legal Boundaries of Flexible Law Enforcement
柔性执法实践中的适用条件与法律边界研究

摘要

柔性执法通过行政指导、提醒纠正、劝导示范以及依法不予处罚、从轻减轻处罚等方式，在实现行政 管理目的的同时降低对行政相对人的过度干预。现行行政处罚制度已对轻微违法、初次违法和无主观过错等 情形建立差异化处理规则，行政裁量制度也不断强调包容审慎与过罚相当。实践中仍存在适用条件扩大、裁 量标准差异以及柔性措施替代监管职责等问题。柔性执法应以合法性为前提，以危害程度、纠错能力和公共 风险为判断依据，并通过裁量基准、程序控制和执法监督明确其运行边界。

Abstract

Flexible law enforcement seeks to achieve administrative objectives while reducing excessive intervention in the affairs of administrative counterparts through measures such as administrative guidance, reminders and corrective actions, persuasion and demonstration, as well as legally permitted exemptions from punishment and mitigated or reduced penalties. The current administrative penalty system has established differentiated rules for minor violations, first-time violations, and conduct committed without subjective fault, while the system of administrative discretion increasingly emphasizes an inclusive and prudent approach and proportionality between violations and penalties. In practice, problems remain, including the expansion of applicable conditions, inconsistencies in discretionary standards, and the substitution of flexible measures for regulatory responsibilities. Flexible law enforcement should be premised on legality, with the degree of harm, capacity for correction, and public risk serving as key criteria, while its operational boundaries should be clarified through discretionary benchmarks, procedural controls, and law enforcement supervision.