规范性折射与法治——算法行政的法律困境及化解

Normative Refraction and Rule of Law—Legal Dilemmas and Solutions in Algorithmic Administration

算法行政是算法与行政程序融合衍生出的新型行政模式,然而算法折射层的存在导致权利异化与风险扩张,算法与法治产生自由裁量与合理性原则、边界溢出与权责统一原则、算法黑箱与行政公开原则等伦理冲突。基于此,需发挥合力、消解冲突,以实现算法效率与风险的平衡,具体措施包括:从当事人进路出发进行算法决策,推动算法折射层的可解释性,重塑多元监管的问责体系。

Algorithmic administration is a new administrative model derived from the fusion of algorithms and administrative procedures.However,the existence of the refraction layer of algorithms leads to the alienation of rights and the expansion of risks.And the combination of algorithms and rule of law results in many ethical conflicts,such as conflicts between administrative discretion and administrative rationality,between boundary overflow and unity of power and responsibility,and between algorithm black box and administrative openness.Based on the legitimacy risk of algorithmic administration,it is necessary to make joint efforts and resolve conflicts to achieve the balance between algorithm efficiency and risk.Specific measures include algorithmic decision-making from the perspective of parties,promoting the interpretability of algorithmic refraction layer,and reshaping the accountability system of multiple supervision.