论不当联结禁止原则对行政管理创新的规制——以创新的法律界限为归宿

The Regulation of Administrative Management Innovation by the Principle of Prohibiting Irrational Connection——In Terms of the Boundary of Law Innovation

在裁量空间许可的范围内,为了实现行政目的,行政机关可能会倾向于运用一切可能手段,并会冠以创新之名。不当联结禁止原则要求行政目的和手段之间必须要有实质、合理的内在联结,并从多维度展开对行政管理创新的内容规制。在现代法治社会,对手段价值的尊重要优先于对目的价值的尊重,若创新的手段违反了不当联结禁止原则,即使目的正当,创新也不符合法治的要求。由于我国对该原则尚未有实定法的规定,在进行司法审查时可以把对该原则的违反归入滥用职权的范畴,为了更好的发挥该原则裁判基准的作用,可以借鉴有关国家和地区的做法在实定法中把其明确化。

Administrative organs, often in name of innovation, will use all means to realize administrative purposes within the room of discretion. The principle of prohibiting irrational connection requires that the administrative purposes have substantial connection with means and that administrative management innovation be regulated in varied dimensions. In a modern society governed by law, the value of the means always comes before that of the end. In the course of innovation, violation of the principle of prohibiting irrational connection is regarded as abuse of administrative authority though the purpose may be justified. Considering the fact that positive laws in China do not provide this principle, it can be conducted in the way that violation of the principle is considered as misuse of authority in judicial review. Moreover, it is advised to set it up in the positive law by drawing on the experiences of other countries and regions so as to give a full play of the principle in judgment.