| With the vigorous development and widespread use of mobile Internet technology,the disclosure system of administrative penalty decisions has become an important means for administrative organs to use the information of administrative penalty decisions of counterparts for administrative management.The disclosure of administrative penalty decision is an act that administrative law enforcement agencies disclose the administrative penalty decision in the process of performing their duties to the unspecified public.The administrative penalty decision conforms to the constituent elements of government information,but because it also contains information that is not within the public scope,such as personal privacy and commercial secrets,it is considered that the administrative penalty decision is a special kind of government information disclosure.Under the background of building a socialist country under the rule of law and a service-oriented government,the ’Administrative Punishment Law ’ incorporates the public system of administrative penalty decisions into legal norms,becoming specific provisions and standardizing public practice.The disclosure of administrative penalty decisions first appeared in the ’ Securities Law ’of 1998,which was mainly used in administrative penalty decisions involving public safety such as environmental protection,food and drug,quality inspection and so on.Up to now,departments with administrative law enforcement power generally disclose penalty decisions online.Most of the current effective administrative penalty decision disclosure legal norms are low,and the disclosure standards are not uniform;the content of high-level legal norms such as " Administrative Penalty Law " and " Government Information Disclosure Regulations " is rough and lacks operability.In the practice of the disclosure of administrative penalty decisions,the following problems need to be solved: First,the definition of ’ certain social impact ’ is not clear,and the administrative organs have greater discretion on whether to disclose or not,which increases the risk of abuse of power.Second,the content of the abstract is too simple,and the reasoning is not enough to convince the public.The disclosure of the full text does not identify personal information according to the requirements of normative documents,which damages the legitimate rights and interests of the counterpart.Third,the disclosure period is not uniform.There are many cases where the administrative penalty decision is made to the public time and the publicity period does not meet the regulatory requirements.Fourth,the official platform is inconvenient to find,and the lack of standardization of new media platforms has led some media to distort the facts in order to attract traffic.Fifth,the right relief mechanism is not perfect.The change and revocation of the second paragraph of Article 48 of the " Administrative Punishment Law " is weak at the speed of Internet transmission;the existing administrative litigation and administrative compensation system is not enough to fully protect the legitimate rights and interests of the relative person or the third person.In order to solve these problems,first,it is necessary to correctly define ’ certain social impact ’,and limit the scope of disclosure to administrative penalty decisions that directly involve public interests.At the same time,the publicity of illegal acts,the types and procedures of punishment,and the impact of illegal acts are specifically defined,and the publicity is the primary premise.Secondly,on the basis of the theory of power control and right protection,we should balance the interest relationship between the right to know and the right to privacy in the disclosure of administrative penalty decisions,adopt the principle of distinction,unify the form of disclosure and the content that should be disclosed,and do not disclose the parts involving state secrets,commercial secrets and personal privacy.To establish an evaluation and audit system,law enforcement agencies should submit the punishment decision and public content to the legal department for review and filing before publicity.The legal department should review strictly in accordance with the requirements of legal normative documents to ensure the legality and rationality of public behavior and content.At the same time,it is necessary to inform and listen to the opinions of the counterpart before the proposed disclosure,protect its basic right of statement and defense,and avoid defective or even wrong administrative penalty decision disclosure.Third,use the principle of proportionality to set the publicity period reasonably.Fourth,in terms of public platforms,in addition to government portals,it is necessary to make full use of Weibo,We Chat and other Internet gathering platforms to spread social risk cases,track and judge public opinion,and improve the risk prevention ability of the masses.Fifth,we should improve the right relief mechanism of wrong disclosure.Carry out self-correction and other corrections by administrative organs,strictly implement the responsibilities of relevant personnel,and establish a system of suspension of disclosure.At the same time,the damage caused by the wrong disclosure to the privacy,reputation,goodwill and other legitimate rights and interests of the counterpart should be compensated. |
