取决于行政任务的不确定法律概念定性——再问行政裁量概念的界定

The Indefinite Concept of Law Inferred from Administrative Tasks

不确定法律概念是否属于行政裁量,直接影响到作为行政法“重镇”的行政裁量概念的建构与导控。分析显示,不确定法律概念内在的事实张力,否定了不确定法律概念的适用属于纯粹法律问题的设想。而对德国不确定法律概念学说脉络的回顾,更透视出行政任务的变迁对不确定法律概念与行政裁量分分合合的主导作用。由此可见,我国的行政法学应以我国政府当下面临的主要行政任务为切入点,选择包含不确定法律概念的“统一裁量理论”。

The exercising rule and supervision of administrative discretion power has long been the focal point in the research field of administrative law. Authority scope of administrative discretion and the shift of its guiding and controlling route obviously indicate the different tasks of administrative power and the change of relevant fundamental theories of administrative law and constitutional theories. The analysis shows the dividing line between the indefinite concept and the administrative discretion, coming of the judgment on whether the indefinite concept is question of fact or law in theory. The bipartite structure comprising the centre of the concept of law and the borderline of the concept of law, makes the concept of law indefinite. The indefinite space, large or small, on the borderline of the concept of law or even on the centre of the concept of law, results in the common character of the indefinite concept of law-polysemy, which indicates the applying of the indefinite concept of law certainly includes the course of choosing the most appropriate meaning to the specific case. The inherent factual intension of the indefinite concept of law denials the assumption that its applying is a pure legal problem. By sorting out the doctrines and practice of state administrative discretion in major countries under the rule of law such as Germany, we can find that the connotation and denotation of administrative discretion depends on the current situation and development trend of administrative tasks. In view of this, the paper defines China＇s administrative discretion on the basis of major administrative tasks at present, and puts forward a definition of administrative discretion in a broad sense, including essential condition discretion and effect discretion. The innovativeness of this idea is that it uncovers the inherent relation between the definition of administrative discretion and the orientation of administrative power, thus bringing about the factual background of regulation environment and structure with regard to the characteristic of individual cases in administrative discretion.