论德国行政机关的裁量权和司法控制

Many Chinese and foreign experts of constitutional law and administrative law, in both modern and contemporary times, have expounded issues of power of discretion exercised by administrative organs and supervision over it from different perspectives. Theories and practice of control (mainly the judicial control) of power of discretion exercised by administrative organs in contemporary Germany have adopted and developed theory of supervision over administrative power of discretion upheld by some western countries. Based on Federal Basic Law, administrative law, statutes and orders, as well as cases decided by administrative courts, and on reference of works written by some famous legal experts in contemporary Germany, this article discusses theory of judicial control over administrative power of discretion. The main contents include:connotation of administrative power of discretion in administrative law; important elements of judicial control of discretion overstepping its authority; manifestation of discretion overstepping its authority by means of action or inaction and consequences arising therefrom; primary manifestation of abuse of discretion (that is, a violation of principles of proportionality, appropriateness and necessity); the means to the exercise of discretion being contrary to objective of delegated legislation; the ground for administrative decision made through exercising discretion being an irrelevant factor; administrative decision violating objectivity and fairness and principle of equal treatment. The article also illustrates meaning of uncertain legal concepts and theory and judicial practice in relation to restrained and unrestrained judicial review.