论行政自由裁量权及其法律规制

Analyses on Administrative Discretion and Its Stiputation by Law

行政自由裁量权是行政权的核心 ,反映了现代行政的特点 ,它在现代法治社会广泛存在有其必然性 ,是能动行政的必然趋势。但行政自由裁量权客观上是把“双刃剑” ,在实践中极易导致滥用 ,从而破坏法治。对行政自由裁量权的行使加以规制是现代法治社会的必然要求 ,标本兼治的做法是构建一个由立法规制、行政自我控制和司法审查三个层次组成的。

Discretion is the core of administrative power and represents the characteristic of modern administration. Discretion is the inevitable tendency of dynamic administration and it is necessary for its wide existence in modern legal society. However, discretion has two sides of the same coin in reality and it is easy to lead to the abuse of discretion in practice, thus destroying the legal administration. Therefore it is the necessity to stipulate discretion in modern legal society. The essential approach is to establish a complete legal system, including stipulation by law, self administrative control and judicial investigation.