企业信用监管中行政处罚的法治化指标研究

市场经济就是信用经济，政府为了维护市场秩序，必须对企业实行信用监管。对存在严重失信行为的企业，行政部门应当采取必要的行政处罚手段。中共十八大以来，在“简政放权、转变职能”、“轻审批、重监管”的大趋势下，政府部门对企业失信行为的行政处罚趋于谨慎，甚至弱化。这一方面释放了市场活力，另一方面也为如何加强监管工作提出了更多挑战。企业信用管理工作应当兼顾柔性和刚性的监管与行政处罚，明确两者关系，合理运用“二元化”模式。对失信企业行政处罚的法治化程度是行政管理体制改革成效的直接反映。建立一套企业失信行政处罚的法治指标和考核标准，就是为政府在信用监管领域提供可操作的法治化行为准则。企业信用监管部门在运用行政处罚手段时，必须在处罚决策、处罚程序、处罚救济、处罚监督等方面符合法治化标准。

Research on the Rule of Law Indicators of Administrative Penalties in Enterprises' Credit

The market economy is the credit economy. The government has to supervise the enterprises' credit situation to maintain a secured market environment. For those who have severe credit problems, the government should use the administrative penalties upon them. Since the 18th National Congress of the CCP, under the trend of ″cutting off administrative power, switch the governing role″ and ″emphasizing supervision instead of approving,″ the government intends to cut off the use of administrative penalties. Such a practice can offer the market more space to develop, however, it also has brought several problems to the supervision process. The enterprises' credit supervision should make good use of both hard ways and flexible regulatory, while clarifying the relationship between these two methods, adopting the ″dualistic model.″ The ″dualistic model″ of enterprises' credit supervision includes the flexible regulatory as well as administrative penalty. Under the circumstance of market and administrative reform, the legalization level of the administrative penalties in this area is a direct reflection of the administrative management system reform. Building up a legalization index system of the administrative penalties in this field will offer the government a principal for their daily work. In the application of the administrative penalties of the enterprises' credit supervision, the government must comply with the legalized standards with regard to the following first-class indicators: the penalty system, the penalty decision, the penalty procedure, the penalty remedy and the penalty supervision. Under the five first-class indicators, there are 18 second-class indicators: the information efficiently shared between departments, the dispute settlement mechanism and clear division and smooth cooperation of different sectors under the penalty system; the priorities of flexible regulatory, improvement of the administrative discretion benchmarks and the normalization of the use of big data technology under the first-class indicator of penalty decisions, among which the use of flexible means and big data technologies reflects changes in the market supervision; the perfection of penalty procedure system, the standards in violation of legal procedures and the consequence of violating the legal procedures under the penalty procedure indicator; the smooth path of the administrative reconsiderations, the administrative litigation procedure without interferences and the administrative compensations under the penalty remedy indicator; supervision and audit of the punishment, the file review system, the implementation of the law enforcement's responsibility system, the improvement of the governments' capability of responding lawsuits and the transparency of the penalty process under the penalty supervision indicator. The index system covers all aspects of the administrative penalties in this field, it reflects not only the requirements of the administrative law, but also the professional characteristics of the economic law. The measuring system of the administrative penalties of the enterprises' credit supervision will improve the ruled-by-law level of the government, while reactivating the application of administrative penalties, achieving a breakthrough of the ″traffic light dilemma″ making the supervision of the enterprises' credit more accurate and efficient.