应受行政处罚行为的构成要件是不法行为的类型化,也就是国会(立法者)经过缜密的考量与提炼,将行政相对人的某些行为确定为应受行政处罚行为,并在文本上以较为抽象的命题对其进行描述。其是法定的,而且对构成要件本身的判断也必须是中立的。在行政处罚中,构成要件随着不确定法律概念的不同类型,可以被划分为经验型构成要件和规范性构成要件两种,二者在构成要件的设定上有所差异,相较于经验性构成要件的稳定性和唯一性而言,规范性构成要件往往讲求多元化,而且有向公共利益倾斜的倾向。在构成要件的设定上,现阶段行政法理论正在经历由封闭走向多元的观念转变之中,在功能主义理念下,应受行政处罚行为构成要件的设定已无须限定于国会立法之中,只要符合授权明确性原则,即使创设构成要件的是行政立法,其同样也可以成为判断应受行政处罚行为的判断标准。 The constitutional elements that should be subject to administrative punishment are the typification of illegal acts, that is, the careful consideration and refinement of the parliament (legislators), certain acts of the administrative counterparts to be subject to administrative punishment, and the text Its more abstract proposition to describe it. It is statutory and must also be neutral in its judgment of the constituent elements themselves. In the administrative punishment, with the different types of legal concepts of uncertainty, the constitutional requirements can be divided into two kinds: the experiential constituent elements and the normative constituent elements, both of which have different constitutional requirements, compared with the experience In terms of the stability and uniqueness of sexual elements, the normative elements tend to be diversified and tend to tilt toward the public interest. In the setting of constitutional requirements, the theory of administrative law is undergoing the transformation from the concept of closure to pluralism at this stage. Under the concept of functionalism, the setting of elements that should be subject to administrative punishment need not be limited to the legislation of the legislature, As long as it complies with the principle of the clarity of authorization, even if it is the administrative legislation that sets the constitutional requirements, it can also become the criterion for judging whether an administrative penalty should be imposed.