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服务型政府建设离不开合法的政府信息公开,而合理的处罚公开更是政府信息公开的重要内容,其涉及私益与公益之间复杂的利益衡量。广州“区伯案”再次将处罚公开与否的问题推上舆论的风口浪尖,对此应当从实证法、法理与情理的“三维角度”进行全面考量,首先有规范虽未明文赋予处罚公开的法定权力,但基于灵活高效的理念,《政府信息公开条例》亦以兜底性条款赋予了行政机关对部分处罚信息公开的裁量空间;其次行政裁量权必须合理正当运用,而此客观标准在于私益与公益的合比例性,因而需要对案涉利益进行多层解构及价值考量,保障行政行为的可接受性与实效性;最后执法的根本目的在于保护民众利益和修复受损的法律秩序,而非打击违法行为的严厉手段,行政机关理应通过法益衡量的方式合理运用处罚公开的法定裁量权,遵循比例原则,不宜任性。
The construction of service-oriented government can not be separated from the legal disclosure of government information, and reasonable disclosure of punishment is an important part of government information disclosure. It involves the complicated interest measurement between private and public welfare. Guangzhou “district case” once again put the issue of punishment open or not on the cusp of public opinion, which should be from the positive law, jurisprudence and reasoning “three-dimensional point of view” to conduct a comprehensive consideration, the first specification is not explicitly given However, based on the concept of flexible and efficient administration, the “Regulations on the Disclosure of Government Information” also give the administrative organs a discretionary space to disclose part of the punishment information with omissions. Secondly, the administrative discretion must be properly and properly applied, and the objective standard Is the proportionality of private benefits and public welfare. Therefore, it is necessary to carry out multi-level deconstruction and value considerations on the interests involved in cases to ensure the acceptability and effectiveness of administrative acts. Finally, the fundamental purpose of law enforcement is to protect people’s interests and repair the damaged legal order Instead of cracking down on harsh means of illegal activities, the executive authorities should make reasonable use of the statutory discretionary power of punishment in public through the measurement of the interests of law, and should not follow the principle of proportionality.