失信联合惩戒的正当性及其立法限度

失信联合惩戒基于其强大的威慑力,成为当前社会信用立法中的关键制度设计。目前如火如荼的社会信用立法及实践中失信联合惩戒的范围有不断扩容的趋势。通过探讨失信联合惩戒正当性基础并厘清其所涉及的公权与私权、惩戒与激励、市场与政府三重关系,间接勾勒失信联合惩戒的范围和框架。在此基础上,有必要明确失信联合惩戒在信用立法中的定位,审慎设置联合惩戒措施,触发机制方面亦需进行关联性、确定性、谦抑性的限制,以实现在寻求最大共识基础上的引领性、基础性法律制度构建的目标,逐步推动信用治理法治化,培植整个社会的信用秩序。

On the Justification for Joint Dishonesty Disciplinary Measures and Its Legislative Boundary

Based on its strong deterring power,the joint dishonesty disciplinary measures have become a key institutional design in the current legislation on social credit.There is a tendency for the coverage of the joint dishonesty disciplinary measures to be expanded in the currently vibrant legislation on social credit and in practices.The boundary and framework of the joint dishonesty disciplinary measures are indirectly outlined in this article by exploring the justification for these measures and clarifying three kinds of relationships involved,namely public rights and private rights,punishment and incentives,the market and the government.Furthermore,it is necessary to clarify the position of joint dishonesty disciplinary measures in credit legislation,formulate the disciplinary measures prudently,and lay relevance,certainty,and necessity restrictions on the activating mechanism,in order to achieve the aim of constructing leading and basic legislative system on the basis of seeking the maximum consensus,gradually promote the legalization of credit governance,and nurture the credit order of the entire society.