应急行政责任豁免制度之建构

The Construction of Emergency Administrative Responsibility Exemption System

现有应急行政责任体系侧重于客观归责,易导致责任承担不公平,也不利于激励执法者积极履行应急行政职责。紧急情况下,公职人员自由意志受到压缩、行为非难可能性降低,应急行政问责必须考量行政环境的变化,确立责任主义、配套均衡的追责与免责机制。应急行政责任豁免包括“紧急不能作为免责”与“紧急善意履职免责”两类,存在紧急情况下不具备认识可能性、作为可能性、结果回避可能性与善意且尽到合理注意义务等免责事由。作为客观前提的“紧急情况”,包括法律上的紧急情况和事实上的紧急情况两类。作为主观状态的“善意且尽到合理注意义务”应以介于公众理性与专家理性之间的官员理性为标准。总体上,应急行政责任豁免条款的内容可以拟定为:公职人员在紧急情况下行使职权的行为,违反本法规定,但出于善意目的且尽到合理注意义务,未造成严重损害的,可以从轻、减轻或免除其法律责任。

The environment of emergency administration is highly complicated and unstable,forcing law-executors to shift their action logic from credit appropriation to blame avoidanceThe current emergency administrative duty system focuses on objective imputation,which may easily cause unfair accountability,not to mention that it disincentivizes law-executors from actively performing their emergency administrative dutiesIn emergencies,the free will of public officials and the possibility of criticism for their actions are reducedTherefore,emergency administrative accountability must consider the changes in the administrative environment to establish the responsibility principle and complement balanced accountability and exemption mechanismThe emergency administrative exemption includes“inability-to-act exemption”and“duty of good faith exemption”,which accepts as justifications in the event of an emergency the impossibilities of consciousness,act,outcome avoidance,as well as duty in good faith and due care“Emergencies”that justify themselves as objective premises include legal and actual emergenciesWith that said,“duty in good faith and due care”,which is intrinsically subjective,should be based on the rationality of officials between public rationality and expert rationalityAs a whole,the content of the emergency administrative exemption clause may be finalized as follows:public officials may be subject to a lighter or mitigated punishment or be exempted from punishment for violating this Law while exercising their authorities during emergencies,provided that no serious damage has been caused and that they are done in good faith and due care。