企业行政合规:功能主义的一块试验田

Corporate Administrative Compliance:A Test Field for Functionalism

“方林富案”与“毒芹菜案”等极端个案的频发,预示着行政执法个案正义需求正在逐渐增长。在传统规范主义框架中,实现个案正义的目标被机械主义法解释规则所严重束缚,需要转变到更为实质的公法哲学上寻找答案。对此,现有的功能主义尽管能够提供一定的变革指引,但由于我国行政权过于强大,功能主义只能朝向更为内卷的控权立场发展,个案正义无法在其中获得满足。因此,我们需要为功能主义添加新的制度工具。目前看来,行政合规是一个可供选择的试验场域。行政合规是典型实用主义法学产物,具有浓厚的实践理性色彩。它既是一种权力释放和收缩机制,也可以满足个案正义需求,实现法律效果和社会效果的统一;同时行政合规也要接受全流程控权监督,符合功能主义行政自治的裁量控制要求。

The frequent occurrence of extreme cases such as the"Fang Linfu case"and the"poisoned celery case"indicates a growing demand for case justice in administrative law enforcement cases.Despite variations in specific circumstances,they all share a common problem:the certainty of illegal behavior by individuals,yet a lack of punishment for suspected administrative inaction,which goes against the requirements of strict law enforcement.However,enforcing punishment according to the law could lead to dissatisfaction from various parties,puting administrative agencies in a dilemma between"administrative legality"and"administrative correctness."Within the traditional normativism framework,administrative agencies are considered as executors of the law,and any administrative discretion should be subject to legal control.The control rules set by legislators for administrative agencies are not only very dense,but also require them to strictly enforce legal provisions.The frequent occurrence of extreme cases such as the"Fang Linfu case"in China is rooted in the dominance of normativism public law thought.Attempts to address the tension between"administrative legality"and the demand for case justice in administrative law enforcement cases within this framework have proven ineffective.Moreover,it may even undermine the current notion of the rule of law that China's administrative law enforcement agencies are striving to achieve,thus undermining the achievements of previous rule of law government construction efforts.Fundamentally,addressing such demands necessitates a shift towards a more substantive public law philosophy.Functionalism aims to avoid the shortcomings of traditional normativism positions by allowing administrative agencies to construct an autonomous mode of using administrative discretion for self-improvement.However,in reality,Chinese administrative agencies often ignore the flexibility and efficiency delegated by the legislative body and autonomously establish rules for self-control,thereby creating a denser legal web and leading to the resurgence of a"mutated"form of normative legalism.In summary,while existing functionalism may offers some guidance for reform,the excessive power of administrative authority in our country tends to drive functionalism towards an increasingly involute position of control,where case justice remains unfulfilled.Therefore,there is a need to introduce new institutional tools within functionalism.Currently,administrative compliance emerges as a viable experimental field.Administrative compliance,a quintessential product of pragmatic legal scholarship,embodies a strong practical rationality,and provides institutional dynamics for corporate self-governance that traditional systems lack entirely,while also providing an operational institutional channel for administrative agencies to achieve case justice.In terms of administrative power control,it serves as both a mechanism for releasing and contracting power,addressing the demands of case justice,and achieving the convergence of legal and societal outcomes.Additionally,administrative compliance must also undergo comprehensive control and supervision,in accordance with the discretionary control requirements of functionalist administrative autonomy,which includes both quintessential normativism control frameworks and the control system built by functionalism itself.