涉隐私行政处罚决定公开的宪法约束

Constitutional Constraints on the Disclosure of Privacy-related Administrative Punishment Decisions

行政处罚决定公开不仅具有规范执法活动和建设透明政府的内在逻辑,而且其制度目的包括满足公众监督权和知情权,但由于公开的方式、内容不同,此种信息公开隐含了侵犯行政相对人隐私权的风险。《中华人民共和国宪法》第三十三、三十八、三十九和四十条,作为隐私权的宪法依据,共同搭建了这一权利的规范基础。隐私权作为一项事关个人生存、体现人的价值、实现个人发展、保护个人精神追求的基本权利,不应当被随意减损。以对一起嫖娼行为的行政处罚决定之公开为例,从合法性和合宪性角度对该公开行为进行考察:合法性要求公开主体、程序、内容等方面要符合法律的规定,合宪性更要求公开行为要符合比例原则,符合宪法的原则与精神,具备合理性。该行政处罚决定的公开侵犯了当事人的隐私权,合法性存在瑕疵,并且在必要性和均衡性方面值得商榷,不能给予合宪性认同。

The disclosure of administrative penalty decision not only has the inherent logic of standardizing law enforcement activities and building a transparent government, but also has the institutional purpose of satisfying the public’s right of supervision and the right to know. However, due to the different ways and contents of disclosure, this kind of information disclosure implies the risk of violating the privacy of administrative counterparts. Articles 33, 38, 39 and 40 of Constitution of the People’s Republic of China, as the constitutional basis of privacy right, jointly set up the institutional basis of privacy right. The right of privacy, as an important basic right that concerns individual survival, reflects human value, realizes individual development and protects individual spiritual pursuit, should not be arbitrarily deducted. In this paper, take the disclosure of the administrative punishment for a whoring behavior in public for example, examine from the aspect of legality and constitutionality: legality demands public subject, procedure, content should conform to the provisions of the law, and constitutionality demands public behavior to conform to the principle of proportion, the principles and the spirit of the constitution, and also has the rationality. This paper holds that the disclosure of the administrative punishment decision violates the party’s right of privacy. It has defects in legality, and is questionable in terms of necessity and balance, so it cannot be approved by the constitutionality.