Abstract：According to the two legislative purposes of the State Compensation Law, filling losses and preventing violations are the two basic functions of administrative compensation. In recent years, judicial practice has emphasized that administrative compensation should reflect the “punishment” for administrative violations. Regarding the phenomenon of “punishing”, there is a common view that the requirement of administrative compensation to reflect the “punishment” of administrative violations is not really to punish the administrative organs, but to emphasize the substantive filling losses of the parties. The primary reason why the court needs to emphasize the “punishment” of administrative violations to achieve the function of filling losses is that the administrative compensation system follows the principle of consolatory compensation, and the function of filling losses is very limited. Therefore, it is justifiable for the court to “punish” the administrative violation as the justification basis for increasing the degree of compensation. However, while emphasizing “punishment”, the courts often adopt procedural administrative compensation judgments, only ordering the administrative organ to make a new administrative compensation decision. If the court is to improve the degree of administrative compensation, then it should consistently make a substantive administrative compensation decision to solve the administrative compensation dispute at once. Moreover, emphasizing “punishment” is not the best way to achieve the function of filling losses. It is more efficient to replace compensation with reparation. Therefore, it cannot be simply understood as helping to achieve the function of filling losses of administrative compensation.Another common view on the phenomenon of “punishment” is that the meaning of “punishment” is to make administrative violations pay the corresponding price through the increase of compensation which prevents administrative violations. However, it is doubtful whether “punishment” can really help to achieve the function of preventing. In public law, it is difficult to establish the hypothesis of economically rational person. More critically, even if the administrative organ can respond to the economic stimulus of administrative compensation, there is more than one way to stimulate, and a higher amount of reparation can have the same effect. Second, it is difficult to reflect the true cost of administrative violations and administrative compensation can be affected by the way administrative litigation is determined, the logic of the government’s actions under the hierarchical administrative system, and many other factors. Third, the function of preventing violations depends on the precise attribution of responsibility. The “punishment” rationale does not provide further clarity on whether the target of “punishment” is intentional or negligent. Therefore, the argument based on “punishment” of administrative violations does not provide sufficient support to achieve the function of preventing violations.It is the moral implications of “punishment” that provide the best perspective for understanding this phenomenon. From the perspective of the moral philosophy of tort law, the purpose of tort liability law is to achieve corrective justice between parties. The value of administrative compensation as tort liability does not lie in the optimal dispersion of losses or the optimal deterrence and prevention. These functions are the results rather than the purposes of administrative compensation. The judicial practice of “punishing” reflects the judicial efforts to return the philosophical basis of administrative compensation to corrective justice. In the law of tort liability, it is the fault and not the violation of law, that is culpable. The real target of “punishing” by administrative compensation is not the administrative violations, but the faults in the administrative violations. The practice of administrative compensation trials is striving to re-establish a close connection with tort law through the technique of legal interpretation. The philosophical foundation of corrective justice and the institutional positioning of tort liability can provide the most appropriate explanation for the “punishment” phenomenon.
蒋成旭. 何以“惩戒”行政违法：行政赔偿的功能、定位及其哲学基础[J]. 浙江大学学报(人文社会科学版), 2021, 51(5): 227-240.
Jiang Chengxu. How to Punish Administrative Violations: The Function and Positioning of Administrative Compensation and Its Philosophical Foundations. JOURNAL OF ZHEJIANG UNIVERSITY, 2021, 51(5): 227-240.