联合惩戒视角下行政“黑名单”制作程序的完善

The Perfection of the Administrative Blacklist Making Procedure from the Perspective of Joint Punishment

基于动态监管、联合监管、权益限制与权益剥夺四种规制方式,行政“黑名单”具有惩戒强化和风险预防双重功能。当前,行政“黑名单”频繁使用于风险规制措施以强化惩戒,使其在“量”与“质”上发生变化,导致事后救济失灵,需要对信用主体提供预防性保障。但是,当前行政“黑名单”制作程序的规定过于原则,听取意见形式过于简单,未规定说明理由,且未根据行政“黑名单”惩戒的特点而改进,难以提供预防性保障。因此,其制作程序需要进一步完善,包括提示信用主体拟采用的联合惩戒措施、以正式听证为原则和清楚、充分地说明理由、清晰展现其判断过程。同时,制作程序需要适当吸收回应性规制理论,建立阶梯式惩戒措施适用方式,且辅之以内部监督程序。

Based on the four regulation modes,including dynamic supervision,joint supervision,rights and interests restriction and rights and interests deprivation,the administrative blacklist has the functions of punishment strengthening and risk prevention.At present,administrative blacklist frequently uses risk regulation measures to strengthen punishment,which makes it change in quantity and quality,leading to the failure of relief after the event.And it is necessary to provide preventive protection for credit subjects.However,the provisions of the current production procedure are too abstracted,the form of hearing is too simple,no explain the reasons,and it is not changed according to the characteristics of administrative blacklist punishment,so it is difficult to provide preventive protection.Therefore,the making procedures need to be further improved,including notify credit subjects to adopt joint disciplinary measures,taking formal hearing as the principle and clearly and fully explaining the reasons,and clearly showing its judgment process.Moreover,the production process needs to properly absorb the theory of responsive regulation to establish a step type of application of disciplinary measures and supplemented by internal supervision procedures.