失信惩戒与传统法律责任体系的衔接

On the Connection Between Punishment for Discredit and Traditional Legal Liability System

失信惩戒与传统法律责任体系的衔接是社会信用体系融入中国特色社会主义法律体系的重大命题。各类失信惩戒与民事责任、行政责任、刑事责任的衔接逻辑迥异。其中,行政性惩戒联合网络呈主导地位,司法性惩戒的定位逐渐流变为信息供给者,市场性惩戒、行业性惩戒、社会性惩戒自发地发挥能动作用以形成共治格局。在实践中存在的脱节现象主要有失信惩戒与刑事处罚不相协调、失信惩戒与行政处罚交互紊乱、失信惩戒行政裁量权范围过于宽泛。对此,应当在谦抑性原则统摄下把握传统法律责任体系和失信惩戒的调整顺序、法律责任系统论视角下重塑一事不再罚原则和禁止重复评价原则、行政处罚法定原则下强化中央和地方失信惩戒行政处罚设定权的立法完善以及比例原则指导下审慎控制行政权以矫正失信惩戒道德泛化趋势。

The connection between punishment for discredit and the traditional legal liability system is an important proposition for the social credit system to integrate into the socialist legal system with Chinese characteristics. The logic of connection between various kinds of punishment for discredit, civil liability, administrative liability and criminal liability is quite different. Among them, the joint network of administrative punishment takes the leading position, the position of judicial punishment gradually changes into information supplier, and market-oriented punishment, industrial punishment and social punishment play an active role spontaneously to form a co-governance pattern. In practice, there are some disjointed phenomena, such as uncoordinated punishment and criminal punishment, disordered interaction between dishonest punishment and administrative punishment, and too wide administrative discretion of dishonest punishment. In this regard, we should grasp the adjustment order of traditional legal liability system and punishment for breach of trust under the guidance of the principle of modesty, reshape the principle of no more punishment for one incident and the principle of prohibiting repeated evaluation from the perspective of legal liability system, strengthen the legislative perfection of the central and local authorities’ power of setting administrative punishment for dishonesty under the guidance of the principle of proportionality, and carefully control the administrative power to correct the trend of moral generalization of credit.