破解行政执法和解的难题——基于证券行政执法和解的观察

Solving Puzzle of Administrative Enforcement Reconciliation: Based on Observation of Securities Enforcement Reconciliation

我国没有关于行政执法和解制度的统一规定,目前仅在反垄断、反倾销和海关知识产权保护领域建立了行政执法和解制度,证券领域在积极探索试点。欧美主要发达国家和我国台湾地区均建立了行政执法和解制度,但实践中德国和我国台湾地区行政执法和解制度的适用范围比美国狭窄,这既受本国和地区的法治传统的影响,也与行政执法和解制度本身的设计密切相关。我们应当抛弃形式法治主义的束缚,基于行政效率、行政执法资源的合理配置等现实考虑,建立行政执法和解制度。目前阶段建议在经济性规制和社会性规制的部分领域展开。行政执法和解应当适用于行政机关对相对人的涉嫌违法行为已经依职权开展调查,且行政处罚所依据的事实或者法律关系不能确定或非经重大支出不能查明时,为有效达成行政目的,经双方让步可以达成一致的情形。行政执法和解协议属于隶属性行政契约,具有可诉性。行政执法和解制度隐藏着一些风险,应当建立相应的程序制度以实现对公共利益和相关利害关系人利益的保护。

In China, there is no uniform regulation of the administrative enforcement reconciliation system but only some separate ones in antitrust, anti-dumping and customs intellectual property protection fields. In the securities field, related pilot is being explored. The system is already established in major developed countries in Europe and America as well as the Taiwan Region, but considering the application scope in practice, for reasons of local rule of law traditional impact and the self-design, it is narrower in Germany and the Taiwan Region than that in the U.S.A. Therefore in China, a uniform administrative enforcement reconciliation system should be set up based on the consideration of practical factors such as administrative efficiency, rational resource allocation, etc., abandoning the doctrine of restraint in the form of rule of law. Currently, it is suggested to set up in fields of economic regulation and social regulation. The administrative enforcement reconciliation should be applied to conditions when the alleged violations by the administrative bodies to the third party are being investigated but facts or legal relationships for making administrative penalties can not be found out without major expenses or be defined, for effectively achieving the administrative purpose, the two sides can reach an agreement in the case of concessions. The administrative enforcement reconciliation agreement is the administrative contract with justiciability. And since there are some hidden risks in the system, related procedures should be established to realize the interest protection of both the public as well as the relevant stakeholders.