信用行政惩戒不宜定性为行政处罚

Improperness of Credit Administrative Discipline Being Regarded as Administrative Penalty

将信用行政惩戒定性为行政处罚是目前学界的主流观点。但是,这一观点所衍生的“遗漏惩戒”“过度惩戒”和“循环惩戒”等问题,不仅与当前的地方信用立法实践相冲突,而且违背信用行政惩戒的运行规律。信用行政惩戒作为一种新型行政方式,与行政处罚在行政任务、行政目的、理论基础、运行规律以及责任属性上均存在显著差异。二者是双轨并行而非互为隶属的关系。推此及彼,此二者的区隔同样也存在于信用行政惩戒与其他传统行政行为之间。于此情形,应考虑通过行政行为体系发展,将其定性为一种新型行政行为。面对一种新型行政行为,行政法治应当摒弃简单套用传统行政行为法治框架的形式主义法治路径,实现行政法治功能由“控权论”到“形塑论”的时代转变,进而通过行政法体系与信用行政惩戒法律特性交互观察的实质主义法治路径,形塑与之相适应的法治框架。

It is the prevailing view at present that credit administrative discipline is regarded as administrative penalty.However,the view has raised questions such as the omit of discipline,excessive discipline and circular discipline and so on,which is not only conflict with current local practice of credit legislation,but also go against the operation rules of credit administrative discipline.There are significant differences between credit administrative discipline which is a new administrative practice and administrative penalty in terms of administrative tasks,administrative purposes,theoretical basis,operation rules and nature of liability.In fact,the relation of the two is double-track system but not subjection of each other.Proceeding from one point to another,there are differences between credit administrative discipline and other traditional administrative act,which is the same as credit administrative discipline and administrative penalty.Based on this,it should be considered that credit administrative discipline could be regarded as a new administrative act by the development of the system of administrative act.In the face of a new administrative act,administrative rule of law should abandon the route of rule of law of formalism which is simply apply to the legal framework of the traditional administrative act,so as to achieve the epochal shift of administrative rule of law from the Theory of Controlling the Power to the Theory of Form and Shape,thereby forming and shaping the legal framework accordingly through the route of rule of law of substantialism which adopt interactive observation on legal characteristics between administrative law system and credit administrative discipline.