论裁量基准的制约因素及建构路径

On Constraints and Route-Construction of Administrative Discretion Standard-Making

实证的考量表明,裁量基准的制定抽象化程度越高,则越背离其本身的目标价值。跨地域幅度的大小、违法情节要件的多寡、基准"格线"设置的优劣、例外条款的有无,决定了裁量基准在个案衡量与一般规范之间达至平衡的程度。应借鉴管制行政领域普遍采用的自我规制技术,建构"自下而上"的裁量基准运行机制,从而为经受基层执法实践历练所形成的裁量基准制度提供正当化路径。

Empirical considerations indicate that the standard of administrative discretion formulated in a higher level of abstraction, the more it will deviate from its own target value. The extent of cross- regional range, the compheacy of constitutive elements of the offence, the rationality of the ＂grid- setting＂ and the existence of the exception provisions are determinants for a discretion standard to achieve a balance between justice in individual cases and in collective context. Therefore, to some extent, these four factors determined the acceptability and enforceability of a discretion standard which is abstracted and formed from the experience and practice of administrative law enforcement by agency at basic level. This paper attempts to draw lessons from self- regulatory technology which is commonly used in government regulation theory as well as to build a＂bottom - up＂ operating mechanism of discretion standard- making, so as to provide the justification basis for discretion standard formulated by grass - roots bureaucracy.