论行政法的便宜原则

On Doctrine of Discretion of Administrative Law

肇始于刑事诉讼领域之便宜原则于大陆法系国家与台湾地区行政法中普遍存在,而我国行政法学界却对之熟视无睹。囿于法治原则,面对大量存在的"恶法",行政机关只能被动执行,引致官民冲突不断加剧。为提升行政决定的可接受性,急需确立便宜原则作为行政法的基本原则,赋予行政主体协商裁量的权力。便宜原则与法治原则犹如水之柔性与山之刚性、与比例原则为授权与控权之关系,三者形成互相补充、相互协调的基本原则群。然而,便宜原则不当运用会导致行政权的恣意与枉为,通过确立重大执法法制审核制度、重大行政执法决定公开制度、行政协商制度、行政公益诉讼制度规范便宜原则的行使。

The doctrine of discretion,originated in criminal litigation,generally exists in the administrative law in the continental law system and in Taiwan,while the Chinese administrative law does not recognize it.Subject to the principles of the rule of law,the administrative organ must execute a large number of Evil Law,which causes intensifying conflict between the officials and people.In order to enhance the acceptability of administrative decision,it is urgent to establish the doctrine of discretion as the basic principle of administrative laws.The doctrine of legislation is rigid like a mountain,while the doctrine of discretion is flexible like water,which gives the administrative organs more power.And the principle of proportionality restrains their powers.They complement and coordinate with each other and consist of the basic principles of administrative laws.Improper use of the doctrine of discretion will lead to the abuse of power,thus damaging the public interest.The doctrine of discretion should be regulated in use by establishing the examination system of major law enforcement,the open system of major administrative law enforcement,the administrative consultation system and the system of administrative public interest litigation.