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药监局“撮合私了”行为的实质是放弃处罚权的不作为违法。销售假药之违法行为严重损害了社会公众的用药安全,同时破坏了市场主体的公平竞争秩序。违法行为所侵害的公共利益具有潜在危险性和主体不特定性特点,只有通过行政处罚才能修复违法行为所侵害的公共利益,所以,应当原则上禁止“撮合私了”。《治安管理处罚法》第9条的规定只是这个原则的例外,是在违法行为社会危害不大的前提下,综合考虑受害人补偿、调查成本等因素的制度选择。基于行政执法程序天然的利益对抗不足之缺陷,为了纠正随意“撮合私了”之违法行为,保护社会公众的用药安全与公平竞争权,将来修改《行政诉讼法》时应当确立行政公益诉讼制度。
The essence of the SFDA “matching private ” acts is to forfeit the right to punish as illegal. Illegal sales of counterfeit drugs have seriously damaged the safety of drug users in the public and at the same time undermined the fair competition among market players. The public interests infringed by the illegal activities are potentially dangerous and the subject is not specific. Only through administrative sanctions can the public interest infringed upon by the illegal acts be repaired. Therefore, the principle of “forfeiting private interests” should be prohibited in principle. The provisions of Article 9 of the Law on Public Security Administration Punishment are only an exception to this principle. They are institutional choices that take into consideration factors such as victim compensation, investigation costs and the like, under the premise of a less harmful social impact of the illegal act. In order to correct any illegal act of “arbitration” and protect drug safety and fair competition of the general public due to the lack of natural interest confrontation due to administrative law enforcement procedures, administrative public interest litigation should be established in the future revision of the “Administrative Procedure Law” system.