裁量基准法律效力之思考

Thoughts on the Legal Effects of Discretionary Standards

面对裁量基准这一日益发展的行政法现象,其效力问题成为人们关注的一个热点话题。裁量基准究竟是否具有法律效力?如果承认其具有拘束力,其法律依据是什么?根据裁量基准制定的法律依据和法理基础,认为裁量基准作为一种行政规则,对行政执法的约束力是不言而喻的;而这种内部的适用力,又将通过行政机关的具体执法活动,延伸至对相对人产生实际影响;对于有合法、合理依据的行政行为,司法活动也应予以尊重。为了裁量基准效力的实现,应该倡导一种理性的裁量基准运作模式。

With the growing phenomenon of administrative law, the effect of the administrative discretionary standard has become a hot topic. Is the discretionary standard of legal effect？ If the binding of discretionary standard is recognized, what is the legal basis for that？ Firstly, the legal ba- sis and jurisprudence fundament of discretionary standard are analyzed to conclude that discretionary standard has a self-evident binding on administrative enforcement as a kind of administrative rules; And this inner applied force, through the specific executive enforcement activities of administrative authorities, will extend to cause a real impact on the relative ; And the enforcement activities also re- pect the administrative activities if they are legal and reasonable. Secondly, the inner impact and the outer impact are analyzed separately from the specific situation of legal effects of China＇s discretion- ary standard. Finally, some problems involving realization of the effects of discretionary standard are proposes. In order to achieve the effects of discretionary standard, a rational mode of operation of discretionary standard should be promoted.