市场失信行为行政性惩戒之探

On the Administrative Punishment of Market Dishonesty

市场失信行为对市场经济的负面影响不言而喻,行政权对其的应对是行政性惩戒,即以国家公权力为后盾倒逼市场失信主体践约守法。实践中,行政性惩戒面临的困境呈现为法律处罚与行政性惩戒的耦合作用、政府与市场的二元互动以及经济行政权与经济宪法背景下公民基本权利保护的价值冲突等理论张力。对此,可遵循引入谦抑性原则动态把握法律处罚与行政性惩戒的逻辑关系、以辅助性原则为统摄强化社会和市场力量在公私合作中的能动作用、以经济宪法为约束细化行政性惩戒合法性和合理性原则子原则的法治思路予以化解。

The negative impact of market dishonesty on the market economy is self-evident.The response of administrative power to it is administrative punishment,that is,with the support of national public power,it forces the market dishonest subject to abide by the law. In practice,the dilemma faced by administrative punishment presents theoretical tension such as the coupling effect of legal punishment and administrative punishment,the dual interaction between government and market,and the value conflict between economic administrative power and the protection of citizens’ basic rights under the background of economic constitution. In this regard,we can follow the rule of law idea of introducing the principle of modesty,dynamically grasping the logical relationship between legal punishment and administrative punishment,taking the auxiliary principle as the control, strengthening the dynamic role of social and market forces in publicprivate cooperation,taking the economic constitution as the constraint, and refining the sub principles of the legitimacy and rationality of administrative punishment.