社会信用体系下市场禁入概念澄清与法律控制——基于比例原则的分析

Concept Clarification and Legal Control on Banning the Entry into the Market under Social Credit System——Analysis Based on the Proportionality Principle

联合信用惩戒机制中的市场禁入是以相对人既往履行法定或约定义务的信用状况为依据,针对严重失信人所实施的一项惩戒措施。进一步分析市场禁入的法律属性可以发现,有的市场禁入实施致使相对人处于比从事违法行为前更不利的状态,在行政行为类型上应当归属于行政处罚。但有的市场禁入旨在维护交易秩序安全和防范市场风险,属于非裁罚性的不利处分。但无论哪种属性的市场禁入都与相对人的营业自由、职业自由直接相关,应当以比例原则为基础构建法律控制路径。

Banning the entry into the market in associated credit punishment mechanism is a disciplinary measure against the serious dishonest person,which is based on the credit status of the counterpart who has fulfilled the legal or agreed obligations in the past.Further analysis of the legal attribute of banning the entry into the market shows that some practices of banning the entry into the market causes the counterpart to be in a more unfavorable state than before,which should be attributed to administrative punishment in terms of the types of administrative acts.But some practices of banning the entry into the market are designed to safeguard transaction safety and protect against market risks,which belongs to non-punitive adverse action.However,no matter what kind of property of market access is directly related to the running business freedom and professional freedom of the counterpart,so we should construct the legal control path based on the principle of proportionality.