作者：王瑞雪
作者介绍：南开大学法学院讲师，法学博士
出版日期：2017年8月9日
内容提要 政府规制中的信用工具,是行政主体对行政相对人的公共信用信息进行记录归集、评价分类、共享公开,并据此实施分类监管和联合奖惩的新型规制工具。信用工具能够有效整合多元治理主体和多元监管工具,为公民创造更多可利用的信息选择,是确保行政义务履行制度的新发展。但目前实践中存在设定依据层级较低、对相对人的权利限制与制度目标之间不成比例、失信情形与惩戒措施之间不具有合理关联、程序装置不完备等问题,须受依法行政原则、比例原则、不当联结禁止原则和正当法律程序原则等公法原则约束。
关键词 政府规制 信用工具 公法约束
Abstract: In the Administrative Law, bona fides could be quantified, measured, evaluated and revealed in the form of credit ratings data. A credit instrument in the Administrative Law refers to a measure by which an administrative agency, in the implementation of its legal duties, collects, classifies, evaluates, disclosures and shares the information generated or revealed by targeted citizens, juridical persons or other organizations. It also includes infringement penalties carried out by administrative authorities. A credit instrument allows easy access for individuals to credit rating information of targeted subjects, coordinates and integrates activities of multilevel and multi-sector governance bodies and regulatory authorities and encourages and enforces compliance by targeted subjects with administrative laws. While credit instrument is a promising development for Chinese administrative regulation, there remains a few practical issues to be discussed such as consistency between a rule created by an administrative agency and the statute made by legislature, the correct balance between a restriction imposed by a corrective administrative measure and the severity of the nature of a prohibited act, the logic between an infringement of the rule made by an administrative agency and consequent penalties and a fair and consistent application of procedure laws. Accordingly, a credit instrument shall be designed in accordance with the fundamental principles of public law such as law based administration of government, proportionality, prohibition of unjustified penalties and due process.