Research On The Nature And Legal Regulation Of Administrative Blacklist System

The blacklist system has been widely used in various fields by administrative organs since it entered our country.As a powerful tool for supervision during and after the event,it has shown great vitality in government management practice.The reason why the administrative blacklist system has been chosen and applied by many government departments is that The reason is that as the basic system of social credit reporting system,it has stronger deterrent force than traditional supervision methods,conforms to the reform upsurge of administrative examination and approval system,and is conducive to maintaining a good credit order,enhancing public credit awareness and protecting public legitimate rights and interests.However,the legal nature of the administrative blacklist system has caused great controversy in the academic circle.Scholars have different views,Some identify it as a single administrative punishment act,administrative guidance act or administrative enforcement act,some think it is a compound multi-stage administrative act,and others classify it functionally,roughly divided into four categories: punitive,warning,filing and legal blacklist,with different categories belonging to different natures.It is suggested that the nature of the administrative blacklist system should be recognized as an administrative punishment act,which corresponds to the sanction nature of its implementation means.At the same time,the problems in practice are becoming more and more obvious,mainly manifested in the lack of substantive law,procedural anomie and the absence of relief mechanism.The lack of substantive law is mainly manifested in: the absence of special legislation,the low level of legislation,and the unclear nature of the law lead to disputes in practice;The implementation subject is unclear and the release subject is arbitrary,which is not conducive to the implementation of the work of various departments.The inclusion standards are different and the scope of publication is unclear,which is easy to cause confusion and abuse of the system.Irregularities in disciplinary measures lead to violations of the principle of proportionality.There are also many defects in the procedure: the release procedure is not standardized,damaging the credit and interests of the opposite party;The lack of hearing procedure infringes the right of defense of the counterpart.The imperfection of the withdrawal procedure violates the original design intention of the system.The defects in relief: the objection appeal mechanism is not perfect,and the rights of reconsideration and litigation are difficult to realize,which seriously affects the relief effect of the administrative counterpart.In view of these problems,it is proposed to put forward legal regulation opinions from the following aspects.First of all,the regulation basis,perfect the legislation,make it clear that the basis for the creation of the administrative blacklist system is laws or administrative regulations,and also formulate special legislation,and promptly clean up the legislation that is not standardized and has chaotic contents.Secondly,the content of regulation will unify the implementing subject into the credit department,define the listed acts as acts that violate laws or administrative regulations,and comprehensively consider the determination of the scope of publication from various aspects.The provisions and application of disciplinary measures should conform to the principle of proportionality.Thirdly,regulate procedures,standardize release procedures,improve review,evaluation and review procedures,and introduce expert review system to give technical support;The establishment of hearing procedures and the implementation of specific steps such as notification,notification and debate;We will improve the withdrawal mechanism,specify the time limit for power restriction,and implement the principle of dynamic management.Finally,regulate the results,set up a preventive litigation mechanism in advance,and clarify the applicable conditions of the mechanism;Perfect the relief means of rights after the event,improve the objection procedure,and at the same time protect the administrative counterpart's reconsideration and litigation rights.