行政黑名单制度的法律属性及其控制——基于行政过程论视角的分析

The Legal Attribute and Control of the Administrative Blacklist System——Analysis on the Administrative Process Theory

作为一种新型的行政活动方式,行政黑名单制度近年来陷入了泛化与滥用危机。在应对危机的法治化建构中,学界对作为前置性问题的界定其法律属性作出了诸多努力,但囿于行政行为形式理论研究范式的内在缺陷,既有学说都无法完全揭开行政黑名单制度之"面纱"。行政过程论研究范式下的行政黑名单制度包括拟列入行为、列入行为、公布行为和惩戒行为。其中,拟列入行为是列入行为的准备行为;列入行为依照有无"列入决定",分别属于具体行政行为和内部行政行为;面向当事人和社会公众的公布行为都属于行政事实行为;惩戒行为应定性为行政处罚。为回应实践中的泛化与滥用危机,应从创设准据、适用范围、程序规范以及救济机制建立等方面对行政黑名单制度予以法律控制。

As a new mode of administrative activities, the administrative blacklist system has sunk into a crisis of generalization and abuse in recent years. During the construction of rule of law in response to the crisis, the academic circle has made many efforts to define legal attribute of such system by regarding it as a fore issue. However, due to the inherent defects of research paradigm of the administrative behavioral form theory, existing theories cannot completely uncover the ＂veil＂ of the administrative blacklist system. The administrative blacklist system under the research paradigm of the administrative process theory includes the Proposed Inclusion Behavior, Inclusion Behavior, Publication Behavior and Disciplinary Behavior. Among them,the Proposed Inclusion Behavior is the preparation behavior of the Inclusion Behavior; The Inclusion Behavior respectively belongs to the Concrete Administrative Act and the Internal Administrative Act based on the fact whether or not there is ＂a decision on inclusion＂; All behaviors publicized to the parties and the public belong to the Administrative Factual Behavior and the Disciplinary Behavior should be defined as the Administrative Punishment. In response to the crisis of generalization and abuse of the system in practice,the administrative blacklist system should be legally controlled from aspects such as the criteria establishment, the scope of application, the standard of procedure and the establishment of the relief mechanism.