涉隐私行政处罚决定公开的挑战与回应

Challenges and Responses to the Disclosure of Privacy-Related Administrative Penalty Decisions

行政处罚决定公开是2021年《中华人民共和国行政处罚法》修订所增加的一项重要规定,是对“行政执法公示制度”改革成果的吸收,体现了行政处罚全过程公开的要求。行政处罚决定作为行政机关对行政相对人行为的负面评价,其公开将对行政相对人的隐私权、个人信息权、名誉权等产生不利影响。但在信息化时代,行政处罚决定公开是行政机关进行监管、强化惩戒效果和教育社会公众的重要手段,亦是实现公共预警、进行风险提示的有效举措。立足既有规范依据,对涉隐私行政处罚决定公开之判定应以不公开为原则、公开为例外。例外的判定还应结合过罚相当原则和比例原则,细化公共利益保护、当事人同意、惩戒效果强化之理由,同时禁止侮辱性公开,以明确隐私保护的界限。

The disclosure of administrative penalty decisions is a critical provision added to the revision of the Law of the People’s Republic of China on Administrative Penalties in 2021,which is the integration of the reform fruits of the“administrative law enforcement publicity system”,reflecting the requirement of disclosure of the whole process of administrative penalty.As an evaluation of the administrative departments’negative behavior towards the administrative counterpart,the administrative penalty decision includes much private information.If the administrative departments do not take cautious steps on the principle of privacy disclosure and the content of the disclosure,it is easy to trigger the effect of a reputation penalty,which will also affect the rights of the administrative counterpart and lead to the loss of property due to the amplification effect of public opinion.The disclosure of administrative penalty decisions can achieve the purpose of penalty with low cost,quick effect,vast influence and other characteristics,in practice,frequently favored by the administrative departments,and also provide adequate measures for the administrative departments to carry out supervision plan,issue the public warning,offer anti-risk advice,and develop public educational programs.However,in the age of information technology,with the rapid spread of information,the negative impact of disclosure does not disappear with the end of the penalty;when increasing penalty decisions are made public,the relevant individuals,legal persons,or unincorporated departments’penalty records will form an information database and be permanently preserved.In order to meet the time requirements of normative and effective protection mechanisms for the parties’rights,such as personal rights,property rights,and personality rights,and to reduce the workload of protecting rights and interests such as the right to privacy,the right to personal information and the right to reputation,the administrative departments,when determining the specific content of the disclosure,should clarify the purpose of disclosure of the decision on penalty and the purpose of making the decision on penalty.Therefore,determining the need for disclosure of privacy should be weighed between the public and private interests,such as the consequences of the decision to impose a penalty and the consequences of disclosure,the costs of protecting legal interests and implementing penalty,and the joint liabilities of disclosure.In accordance with the current normative requirements,the judgment on the disclosure of privacy-related administrative penalty decisions should follow the principle of non-disclosure or disclosure,with exceptions.The determination of exceptions should be combined with the principle of equivalence and the principle of proportionality on penalty.Meanwhile,the reasons for protecting the public interest,the consent of the parties,and strengthening the penalty effect should be elaborated at a deeper level.Specifically,public interest protection can be approached from the perspective of protecting the right to know(especially in cases involving public security and public health)and supervising the right to penalty(through the disclosure to put pressure on the administrative departments,and to provide a platform for public supervision);the consent of parties should obtain a separate,specific,and definite declaration of will from the interested parties;the strengthening of the penalty effect can be divided into two types:the target of the penalty for the influential offenders of the public and for ordinary offenders of the public.In order to strengthen the deterrent effect of the disclosure of administrative penalty decisions,and to provide the possibility of timely credit repair after the deterrent purpose is achieved,the administrative departments should strictly confine the scope of the content for disclosure,which should be stated objectively,and should not be biased in favor of the victim or contain insulting words,to reserve the bottom line for the human dignity of the administrative counterpart.