行政裁量的治理

On the Governance of the Administrative Discretion

行政的生命在于裁量,行政法的核心在于通过法治实现对行政裁量问题的有效治理。在以英美为代表的西方法治发达国家,治理方案已从传统主流的规范主义控权模式拓展到功能主义的建构模式。在我国,着眼于全球化的视野和中国的现时状况,应当着力倡导一种以"原则"为取向的功能主义建构模式,即在法定、均衡和正当等行政法原则的统制之下,通过行政规则、利益衡量、意志沟通和司法审查等功能因素的有效发挥,达到行政裁量的最佳建构。

The administrative life lies in discretion, and the core of the administrative law hes in me effective governance to the administrative discretion through the rule of law. In the western developed rule -of- law countries represented by Great Britain and America, their governing scheme has already expanded from the traditional controlling mode of normativism to the structuring mode of functionalism. In our country, taking consideration of the globalization vision and current state, we should advocate a principle- oriented structuring mode of functionalism, i. e., under the governance of administrative law principles such as legal, balanced and justice, give full play of the many functional factors such as the administrative rule, benefits weighing, will communication and judicial review to achieve a best structure of administrative discretion.