论比例原则对裁量行政行为的规制

On the Regulation of Discretionary Administrative Act by the Principle of Proportionality

行政的精髓在于裁量,但裁量同样会产生诸多问题,如何规制裁量行政行为,在自由裁量与依法行政之间保持平衡,是现代行政法的重要课题。行政裁量因其远司法的特性,使得法律的直接调整变得困难,但通过以合理性为直接追求的比例原则对裁量行政行为进行规制,则可以间接地将自由裁量引入行政法治的轨道。

The essence of administration is discretion, which will also produce many problems. How to regulate discretionary administrative act in order to maintain a balance between discretion and ad-ministration according to law is an important issue of modern administrative law.Because of its far-judicial feature the administrative discretion is difficult to be directly adjusted by the law.Through the principles of proportion focusing on rationality, administrative discretion behaviors can be regulated, and indirectly guided to the track of law.