公益保护、行政处罚与行政公益诉讼——杭州市药监局江干分局“撮合私了”案引发的思考

Public Interest Protection, Administrative Punishment and Administrative Public Interest Litigation——Thought on Case of ‘Making up Private Settlement’ of Drug Administration of Hangzhou Jianggan Branch

药监局"撮合私了"行为的实质是放弃处罚权的不作为违法。销售假药之违法行为严重损害了社会公众的用药安全,同时破坏了市场主体的公平竞争秩序。违法行为所侵害的公共利益具有潜在危险性和主体不特定性特点,只有通过行政处罚才能修复违法行为所侵害的公共利益,所以,应当原则上禁止"撮合私了"。《治安管理处罚法》第9条的规定只是这个原则的例外,是在违法行为社会危害不大的前提下,综合考虑受害人补偿、调查成本等因素的制度选择。基于行政执法程序天然的利益对抗不足之缺陷,为了纠正随意"撮合私了"之违法行为,保护社会公众的用药安全与公平竞争权,将来修改《行政诉讼法》时应当确立行政公益诉讼制度。

The essence of drug administrative making up private settlement behavior is an illegal omission of giving up the punishment right. The sales of counterfeit drugs seriously tort the social public medication safety and the fair competition order of market subjects. Since the public interests trotted are of potential risk and the subjects are uncertain, only administrative punishment can repair these interests. Therefore the behavior of making up private settlement should be prohibited in principle. However, the article 9 of the Security Administration Punishment Act is only an exception, i.e. a systematical choice taking into full consideration factors such as victim compensation and investigation cost when the social damage of illegal behaviors is relatively low. Since the administrative law enforcement procedure has the inherent nature of interest imbalance, for avoiding illegal behaviors such as making up private settlement at random and guaranteeing the social public medication safety and the fair competition right, the administrative public interest litigation system should be established in future Administrative Procedure Law modification.