On the Identification and Issues of Continuous and Continuing Violations under the Principle of Ne Bis in Idem

行政处罚适用对的“一事不再罚原则”以《行政处罚法》为法律基础，虽然其中关于“不再罚”的认定较为清楚，但对于“一事”的判断，即违法行为数量的认定存有争议。此外，虽然依据传统构成要件理论能合理的认定违法行为是否成立，而在面对社会危害性更大的连续违法行为和继续违法行为时，只能将其认定为一次违法进而予以一次处罚则会违背“过罚相当原则”。所以在针对不同的违法情形，有些违法行为可以设立时间或空间的中断条件，将其切割为数行为进行连续处罚；有些违法行为可以设定情节加重的处罚条件，施以其更为严厉的处罚。在处理连续违法行为和继续违法行为时，在坚持“一事不再罚原则”的同时，还要贯彻“过罚相当原则”。The principle of “no further punishment for one matter” in the application of administrative penalties is based on the Administrative Penalty Law. Although the determination of “no further punishment” is relatively clear, there is controversy over the judgment of “one matter”, that is, the determination of the number of illegal acts. In addition, although the traditional theory of constitutive elements can reasonably determine whether an illegal act is established, when facing continuous and continuing illegal acts with greater social harm, it would violate the principle of “proportionality of punishment” to only recognize them as one violation and impose one punishment. So, in response to different illegal situations, some illegal behaviors can be subject to interruption conditions in time or space, and be divided into several behaviors for continuous punishment; Some illegal acts can be punished with aggravating circumstances and more severe penalties can be imposed. When dealing with continuous and continuing illegal acts, while adhering to the principle of “no more punishment for one matter”, we must also implement the principle of “equivalent punishment for over punishment”.