裁量基准司法审查的区分技术

Distinguishing Method to the Judicial Review of Discretion Standard

真实文本中的裁量基准具有双重性格,它既可能会通过格次划分技术触及法律效果问题,从而呈现出行政裁量细化的角色;同时也可能会通过行政解释技术涉及法律要件问题,从而呈现出不确定法律概念具体化的秉性。由于传统上法院对不确定法律概念和行政裁量的司法审查强度强弱有别,因此对裁量基准的司法审查也应采取两元区分的方式逐一展开,即法院应根据基准文本所对应的客体究竟是"不确定法律概念"还是"行政裁量",分别奉行严格与宽松的不同审查立场。在本质上,这是一种更为贴近文本的司法区分技术,可以在最大程度上平衡裁量基准规则主义与行政自制之间的紧张关系。

From the text of discretion standards, they often have two different identities： one of them is Administrative Discretion, which is decided by its grid-setting skills from the part of law effect in the enabling clauses; the other is Uncertain Legal Concept, which is decided by its administrative interpretation skills from the part of constitutive requirements in the enabling clauses. Because the intensity of review to Administrative Discretion is different from Uncertain Legal Concept in mainstream judicial review theroy nowdays, courts usually distinguish them and take a soft and strict different attitudes. So we should also take this method into the course of judicial review of discretion standard, and take a review standard according the identity of discretion standard. In my opinion, this distinguishing method may be a way that could defer to the text of discretion standards at most, and also can balance the intense relation between the discretion standards＇ Rule Doctrine and Administrative Self-restraint character at most.