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对我国海关缉私惩罚权的运行机制进行探讨,目的在于指出其特殊性并对该机制运行的关键予以理解。这涉及考察海关缉私惩罚权在普通法律制度意义上,是否存在其基本的独立性,还是趋向于成为普通法中的一种。海关缉私惩罚在立法设计及运行环节都呈现出特殊性,在惩罚规则上也保持着原创性,这源自于走私行为对国家经济利益的损害也因为走私手法隐蔽而难以查缉的必需。如今,对海关缉私惩罚权的发展必须从双重动向上给予评价,一是认识到这种特殊性还有存在的空间,二是必须承认海关职权的行使不能成为国家其他法律的例外,应在合宪和合法的框架下发展。对此,应在最低限度内考察立法者、执法者和司法者对海关缉私惩罚定位作出的从未停歇的推动,它们对海关缉私惩罚权的适用及整合均发挥着作用。海关缉私惩罚权的特殊性在减弱,宪法原则、精神和规则对它的运行提供了宪定边界。
The purpose of this paper is to point out its particularity and to understand the key to the operation of this mechanism. This involves investigating the existence of the basic independence of customs punishments in the sense of the ordinary legal system, or tends to become one of the common law. Customs punishments in the anti-smuggling of the legislative design and operation of the link are both particular, but also maintain the originality of the punitive rules, which stems from the smuggling of the economic interests of the country because of covert smuggling and hard to find necessary. Nowadays, the development of the punishment right of anti-smuggling by customs must be appraised from two directions. One is that there is room for realizing this particularity, the other is that it must be acknowledged that the exercise of customs authority can not be an exception to other laws of the country. Constitution and legal framework. In this regard, at a minimum, legislators, law enforcement and judicial officials should investigate the anti-smuggling and customs punishments made never stop the promotion of their right to punish customs penalties for the application and integration play a role. The peculiarities of customs punishment of anti-smuggling are diminishing. The constitutional principle, the spirit and the rules provide the constitutional boundary for its operation.