失信联合惩戒的正当性拷问与理论解决方案

Legitimate Interrogation and Theoretical Solution of Joint Punishment for Dishonesty

失信联合惩戒的制度创新实践源自社会治理的现实需求。但在从理论层面阐释其正当性时,却遇到了前所未有的困难:一方面,传统概念法学或行政法教义学在解释失信(部门)惩戒措施的行为属性时,遇到了不少困难,理论上难于自圆其说;另一方面,新公法学的理论正当性探求,或因其"去法化"特征,或因某些条件缺失,也存在一些问题与缺陷。而部分学者提出的"独立或综合责任说"解决方案,在现行制度框架下并不可行。建议基于合法性和最佳性的目的平衡立场重塑立法和行政的关系,科学设置行政权的制约监督方式,合理配置行政权与立法权的权限范围,为失信联合惩戒的行为属性界定提供理论解决方案。

The institutional innovation practice of joint punishment for dishonesty not only needs to explain its legitimacy from a practical perspective,but also needs to explain its legitimacy from a theoretical perspective.The theoretical exploration has encountered unprecedented difficulties:on the one hand,traditional conceptual jurisprudence is difficult to explain the behavior(responsibility)attribute of the disciplinary measures for dishonesty(departments).On the other hand,there are some problems and defects in the exploration of the theoretical legitimacy of the new public law,either because of its characteristics of"de-legalization"or because of the absence of constitutional conditions.The research shows that the solution of"independent or comprehensive responsibility theory"proposed by some scholars is not feasible under the current system framework.It is suggested to reshape the relationship between legislation and administration based on the aim of legality and optimality,scientifically set up the way of restriction and supervision of executive power,and rationally allocate the scope of jurisdiction between executive power and legislative power.