行政惯例如何进入行政裁量过程——对“钓鱼执法事件”的追问

How Does Administrative Practice Enter Administrative Measurement——Inquiry on the "incident of law enforcement through bait"

"钓鱼执法事件"的发生为观察行政裁量活动对行政惯例的考量提供了难得的鲜活素材。作为基层行政执法经验的高度凝练,行政惯例借助典型案例、成文规则或行政自我拘束原则的适用彰显对行政裁量活动的导引,有助于遏制裁量滥用现象的发生。实践观察同样显示,个案裁量过度依赖行政惯例也会产生裁量怠惰、架空法律及助长专横等消极影响。为了实现行政惯例对个案裁量运作的良性指引,应当从事前发布、事中说理及事后审查三重机制的建构上进行努力。

The ＂incident of law enforcement through bait＂ offers rare and vivid material for observing the effect of administrative measurement on administrative practice. With rich grass-root enforcement experience, administrative practice guides the measurement activity with the help of typical cases, written rules or application of self-restraint principle, which helps hold back abuse of measurement. The practice also shows that individual measurement highly depends on administrative practice, which will also lead to negligence, make law a figurehead and increase domineering. In order to achieve a benevolent guidance of administrative practice for individual measurement, we should focus on the establishment of three mechanisms as release in advance, reasoning in the middle and census afterwards.