行政裁量：羁束与自由的迷思

The Muddle of Administrative Discretion between Bound and Freedom

在大陆法系行政法学中,行政裁量与羁束行政相对,又被分为羁束裁量和自由裁量。羁束与裁量的区分有其存在的必要,羁束裁量和自由裁量的区分在一定历史时期里也有其合理之处,但其间的区分标准并不清晰。随着司法审查的发展和人权保障理念的深化,这种区分日益相对化,故而我们需要走出这种历史类型的迷思,另寻其他更合理的认知路径。

In the traditional continental legal system, administrative discretion is contrast to restrictive action and is divided into restrictive discretion and free discretion, It is necessary to discriminate discretion from restriction. The discrimination between testrictive discretion and free discretion also has some historic rationality, but the discriminative standard isn＇t clear. Furthermore, with the development of judicial review and protection of human rights, the discrimination becomes relativized increasingly. So we should go out of the muddle and search a more rational way to recognize administrative discretion.