论失信的行政联合惩戒及其法律控制

Research on the Administrative Joint Punishment of Dishonesty and the Legal Control Over It

失信的行政联合惩戒是社会信用体系建设迄今为止颇具侵害性与威慑力的手段之一,是中国特有的一种制度设计。失信的行政联合惩戒是在根据原有法律规定对失信者进行制裁的基础之上,再次在经济、社会活动中对失信者设置障碍或进行限制的制度安排,因而不同于为了促进被执行人履行生效法律文书确定的义务的强制执行措施。作为事前预防模式的失信行政联合惩戒能够弥补传统事后处罚模式的不足,有效提高社会诚信治理水平。在法律性质上,失信行政联合惩戒是由多重行政行为叠加而成的制度整体,实践中既可能呈现为行政检查、行政指导等行政事实行为,亦可呈现为行政处罚、行政许可、行政合同、行政补贴等行政法律行为。鉴于失信行政联合惩戒能够对社会主体产生重大影响,有必要在行政法治框架下,从法定性、关联性、合比例性及程序设计上对失信行政联合惩戒进行严格的法律控制。

The administrative joint punishment of dishonesty is one of the most invasive and deterrent means of China's social honesty system construction, and it is a unique system design in China. The administrative joint punishment of dishonesty sets up obstacles or restrictions on the dishonest person in economic and social activities once again after the person have been sanctioned according to the law he violates. Thus it is different from the enforcement measures in order to promote obligors to perform obligations established in the legal instruments in force. As a preventive mode, administrative joint punishment of dishonesty can effectively make up for the shortcomings of the traditional post-penal punishment model and effectively improve the level of social integrity. In the legal nature, the administrative joint punishment of dishonesty is a system that is composed of multiple administrative actions. In practice, it may be presented as administrative inspections, administrative guidance and other administrative factual action, and may also be presented as administrative punishment, administrative licenses, administrative contracts, administrative subsidies and other administrative legal action. Since the administrative joint punishment of dishonesty can have a major impact on the social subject, it is necessary to strictly control it from the legality, relevance, proportionality and due process within the framework of administrative rule of law.