论行政处罚决定有限公开规则

《行政处罚法》第48条第1款吸纳《政府信息公开条例》之规定,在法律层面设定了行政处罚决定有限公开规则,但却面临严峻的适用困境。行政处罚决定兼具政府信息、相对人负面信息和公共信用信息三重属性,其广泛公开规则已然覆盖各层级规范,且与及时公开、多渠道公开等规则相衔接。为释放有限公开规则的作用空间,有权机关应当明确否定并清理以不同面貌出现的广泛公开规则,厘清有限公开规则在政府信息公开、声誉制裁、信用监管等不同维度的核心要求。同时,客观呈现公开内容、限制公开载体与方式、适当予以暂缓公开等审慎公开规则亦应与有限公开规则相衔接。有限公开规则须以行政裁量和听取意见程序为支撑,无法以自动化方式展开,但建构行政裁量模型仍有益于解决其被架空的难题。“违法行为主体—违法行为客体—违法行为严重程度”三维裁量框架有助于增强公开标准的明确性,矫正实践对“具有一定社会影响”标准的普遍背离。

Disclosure of administrative penalty decisions refers to the public disclosure of government information related to administrative penalty decisions made by administrative organs against administrative counterparts with the degree of disclosure reaching the standard that administrative counterparts can be identified by the public.Article 48 Paragraph 1 of the Law on Administrative Penalty(as revised in 2021)stipulates that“decisions on administrative penalties that have certain social influence shall be made public in accordance with law”,thereby clearly setting out the rule of the limited disclosure of administrative penalty decisions.By adopting the standard set out in Article 20 Paragraph 6 of the Regulations on the Disclosure of Government(as revised in 2019),it realizes the unity of“general law”in the fields of administrative penalty and government information disclosure.However,various hierarchical norms that focus on government information disclosure,reputation sanctions and credit regulation still take“disclosure as the norm and non-disclosure as the exception”,and the limited disclosure rule is brushed aside.Administrative penalty decisions have three attributes:government information,public credit information and negative information,all of which have a natural tendency to expand the scope of disclosure.Meanwhile,the rules on timely disclosure and multi-channel disclosure have formed a strong support system for the rule of extensive disclosure.Against such a background,it is difficult for the limited disclosure rule,which lacks clarity,to counteract the existing rules,which operate almost automatically.The orderly review of relevant legal norms should be based on Article 48,following its original intention of moderation and balance as well as the requirements of the principle of proportionality,so as to balance the reputation interests of the individual with the public interest of achieving regulatory goals and eliminate norms that apparently contradict the rule of limited disclosure.Specifically,administrative organs can take the three-level administrative discretion model of“the subject of the illegal act–the object of the illegal act–the severity of the illegal act”as a reference to determine whether an administrative penalty decision should be made public in light of the specific regulatory situation,so as correct the widespread deviation of practice from the standard of“only disclosing decisions on administrative penalties that have certain social influence”.An administrative penalty decision should be disclosed if all the above-mentioned three dimensions suggest that there is a necessity to do so.If the results of judgments based on the three dimensions conflict with each other,then the“severity of the illegal act”should be the decisive criterion for the determination.In the process of exercising administrative discretion,an administrative organ should listen to the statements and arguments of the administrative counterpart,rather than making the determination through automated administrative procedure.The limited disclosure rule should also be supported by other prudent disclosure rules,such as those on objective presentation of the disclosure content,limitation on the disclosure channels and appropriate suspension of disclosure.