论行政指导裁量权及其规制

On the Discretionary Power in Administrative Guidance And Its Regulatory Ways

行政主体行使裁量权作为行政管理的新方式,行政指导的地位和功能日益凸显。但对行政指导裁量权的研究却十分薄弱。分析行政指导裁量权在法律要件和法律效果中的不同存在形态,划定其必须遵循的三条界限,并从立法、行政和司法三权角度,论证规制行政指导裁量权的途径。

The administrative discretionary power operated by the administrative subject is a new way of administration and the position and function of administrative guidance has become more and more important.However,the study on discretionary power in administrative guidance is quite weak.This paper analyzes its different existing forms in important documents and effects of laws,figures out three limitations it must obey and argues the routes of regulating this power from legislative control,administrative regulation and judicial remedy.