论职业协会惩戒权的公法规制

On the Public Law Regulation of Punishment Power of Professional Association

依法律保留原则,职业协会惩戒规则可创设的惩戒种类应分三种情况:"加强型"的法律保留、"框架性"法律保留以及无需法律保留可自行创设的惩戒种类。职业协会惩戒权运行时应当遵循正当程序,具体包括无偏私规则和公平听证权。以履行"公共治理职能"为标准,职业协会惩戒行为具有可诉性,应将"穷尽协会内部救济"作为司法审查的前置程序,另外,在惩戒规则的解释、案件事实的认定、不确定法律概念方面注意司法审查的强度,以平衡司法权与协会自治权的关系。

According to the principle of law-preserving,the punishment kinds which created by the disciplinary principle of Professional Association can be divided into three circumstances： the ＂reinforced＂ law-preserving,＂structural＂ law-preserving and the punishment kinds which can be created by itself without needing law-preserving.The punishment power of professional association shall operates in accordance with due process which includes no bias deciders rules and fair hearing right to perform ＂the functions of public administration＂ as the standard,punishment actions of professional associations has a characteristics of justiciability,should ＂end the internal remedy of association＂ the preceding procedure of judicial review,in addition,in terms of the explaination of the punishment rules,the fact-finding of the case,uncertain legal concept,in order to balance the relationship between judicial power and autonomy of association,the punishment power of professional association should pay attention to the intensity of judicial review.