失信约束制度适用范围的实践扩张与立法限缩

Practical Expansion and Legislative Limitation of the Application Scope of Trust-breaking Restraint System

作为声誉机制的重要组成部分,行政主导下的失信约束制度因其“成本小、见效快”的特点受到行政机关的青睐。由于缺乏上位法的限制,失信约束制度的价值在实践层面被充分挖掘,其适用范围由特定领域扩张至社会治理的各个方面。失信约束制度以声誉不利和权利受限为主要威慑工具,过度扩张的适用范围易侵害相对人的合法权益,有违法治政府建设的基本要求。在社会信用立法过程中宜对其适用范围进行适度限缩,界定为市场主体及其法定代表人、主要负责人和其他负有直接责任的人员违反市场监管要求,破坏市场公平竞争秩序的违法行为。

As an important part of reputation mechanism,administration-led trust-breaking restraint system is favored by administrative organs because of its characteristics of“small cost and quick effect”.Owing to the lack of upper law restrictions,the value of the true-breaking restraint system has been fully explored at the practical level,and its application scope has expanded from a specific field to all aspects of social governance.The trust-breaking restraint system takes unfavorable reputation and limited rights as the main deterrence tools,and its excessive expansion of the application scope is easy to infringe on the legitimate rights and interests of the other party,which violates the basic requirements for the construction of government under the rule of law.In the process of social credit legislation,the application scope of the system should be moderately limited and narrowed,and it should be defined as the illegal acts of market entities,their legal representatives,main responsible persons and other directly responsible persons that violate the requirements of market supervision and destroy the order of fair market competition.