行政执法过程中的裁量正义

Discretionary Justice in the Process of Administrative Enforcement

行政执法正义攸关群众对党和政府的信任、对法治的信心。裁量权基准乃执法正义之基础,基准正义系裁量正义之前提。基于基准正义,行政执法裁量权基准应当衍生于法律、衍生于个案需要、衍生于实践经验的归纳与总结。裁量过程融惯于执法过程,过程正义乃裁量正义的呈现方式。所谓裁量正义不在别处,就在主体间性之中;正是在主体间性模式中,执法裁量过程成其为有效沟通、关怀输送、共识达成的过程。如果说主体间性是裁量正义的内生力量,那么基准规制和司法审查就是裁量正义的保障机制。而导向规制正义的基准规制内在地需要具备实践性、透明性、交互性之秉性;达成矫正正义的司法审查则须保持能动性、审慎性、适度性之品格。

Justice in administrative law enforcement is vital to the people’s trust in the Communist Party of China and the government and their confidence in the rule of law.The basis of discretion is the basis of justice in law enforcement,and the basis justice is the premise of discretion justice.Based on benchmark justice,the benchmark of administrative law enforcement discretion should be derived from the law,the needs of individual cases,and the summary of practical experience.The process of discretion is accustomed to the process of law enforcement,and the process justice is the way of presentation of discretion justice.The so⁃called discretionary justice is not elsewhere,but in intersubjectivity;It is in the intersubjective model that the process of law enforcement discretion becomes a process of effective communication,care delivery and consensus reaching.If intersubjectivity is the endogenous force of discretionary justice,then benchmark regulation and judicial review are the guarantee mechanism of discretionary justice.The benchmark regulation that leads to regulatory justice needs to have the inherent characteristics of practicality,transparency and interactivity.The judicial review to achieve corrective justice must maintain the character of initiative,prudence and moderation.