立法调整、执法改革抑或公众参与？--突破摊贩管理暴力困境的核心思路辨析

Legislative Adjustment, Law Enforcement Reform or Public Participation——Core Thought Discrimination of Breakthrough From CheapjackViolent Management Dilemma

摊贩管理的暴力困境是行政处罚权体制改革的副产品,其主要症结在于监督城管的机制缺陷、制度与民俗相冲突两个方面。对比化解困境的三类核心思路:立法调整,需要协调多方利益、时间成本高、无力解决执行难;执法改革,缺乏监督机制与公信力、成效欠佳;公众参与,着眼于强化制约城管权力、引导社会舆论转向,是突破摊贩管理暴力困境的理性选择。然而,公众参与存在被虚置的风险,因此,需要确立契约关系、全程监督等四项保障原则。

Being the by-product of the administrative punishment power system reform, the cheapjack violent management dilemma is mainly caused by two issues, i.e. the supervision mechanism defect of urban management staff and the conflict between the system and the folklore. Comparing the three major resolutions, legislative adjustment is in need of multiple interests coordination and high time cost but with no law enforcement solution, and the law enforcement reform is lack of supervision mechanism and public trust with low effect, but public participation focuses on strengthening of urban management power restriction and guiding the public opinions turned, which is the rational choice for breaking through the violence dilemma. However, in order to avoid the emptiness of public participation, four guarantee principles should be established, including the contractual relationship and supervision over the whole process.