非立法性规则在失信惩戒行政诉讼中的可诉性分析

Analysis of the Actionability of Non-Legislative Rules in Administrative Litigation for Punishing Breach of Faith

失信惩戒是社会信用体系的核心机制,但自诞生起,便遭遇合法性缺失的激烈批评。正所谓有公权力实施的地方就会有私权利受到侵害,失信惩戒机制也不例外。而现在,我国对失信惩戒行为的规制大部分还仅停留在规范性文件上,虽实践情况丰富多样,但其法律性质和法律救济都尚不明晰,在此背景下,少数学者开始呼吁提供行政诉讼等救济途径来保护失信惩戒相对人的权利。然而,由于其大多数依据都属于“法规范”的常规范畴也即法律、法规、规章以外的规则,因此此类行为能否进入行政诉讼的阶段就打了个问号,基于此,有必要深入分析非立法性规则在失信惩戒行政诉讼中的可诉性,使其达到“有效且无漏洞的权利保护”标准。

Punishment for breaking faith is the core mechanism of social credit system, but since its birth, it has encountered fierce criticism of the lack of legitimacy. Where there is so-called public power, private rights will be infringed, and dishonesty disciplinary mechanism is no exception. But now, most of our country’s regulations on dishonest disciplinary acts only stay on the normative documents, although the practice is rich and varied, but its legal nature and legal relief are not clear, under this background, a few scholars began to call for the provision of administrative litigation and other means of relief to protect the right to punish the opposite party for breach of trust. However, since most of its bases are in the normal category of “legal norms”, that is, rules other than laws, regulations and regulations, it is questionable whether such acts can enter the stage of administrative litigation, based on this, it is necessary to analyze the actionability of non-legislative rules in administrative proceedings for discredit punishment so as to reach the standard of “effective and non-loophole right protection”.