行政违法记录的法治纠偏与规范建构

Rule of Law Correction and Normative Construction of Administrative Offence Records

对应犯罪记录,违法记录是行政机关对当事人行政违法行为的客观记录,其在行政实践中发挥着作为量罚量刑基准以及进行特别预防的目的。但违法记录如何可被记载、其对个人未来的行为能力和资格担当会产生何种限制,立法缺乏明确规定;至于违法记录的属性确认,行政机关出现错登误登以及公安机关将违法与犯罪互相捆绑时,当事人又如何救济,司法裁判也并不统一。制度缺失和裁判的不统一直接导致行政违法记录的无序扩张和滥用,也对违法行为人产生了持续影响。上述问题都需要通过对违法行为记录适用的规范化予以纠偏。为破除对当事人持久的精神羞辱和制度歧视,立法也须逐步确立违法记录封存乃至消除的制度。

In contrast to criminal record,the offence record is an objective record by an ad-ministrative organ of an administrative offence committed by the person concerned,which serves as a benchmark for the imposition of penalties and sentences in administrative practice,as well as for special preventive purposes.However,how the record of violation of law can be re-corded,and what kind of restriction it will have on the individual's future ability to act and quali-fication to take up,so far there is a lack of clear provisions;as to the attribute of the record of violation of law,the administrative organs have mistakenly registered wrongly and the public se-curity organs will be the violation of law and the crime of each other bundled with the party and how to relief,the judicial decision is also not uniform.The lack of system and mixed judicial de-cisions also directly lead to the disorderly expansion and arbitrary abuse of administrative offence records,which has a continuous impact on the person of the offence.All of the above problems need to be corrected through the standardized construction of illegal records.Legislation should progressively establish a system for the sealing and elimination of illegal records to dismantle the enduring spiritual humiliation and systemic discrimination against the person concerned.