基于行政自制理论下行政自由裁量权控制方法的探寻

Exploration of the Control Method of Administrative Discretion Based on the The-ory of Administrative Self-Control

行政自由裁量权是我国行政权力的重要组成部分,是应对现代社会层出不穷的行政事务的必要手段。但是因为行政自由裁量权具有较强的主观性,所以常常导致行政自由裁量权被滥用。传统观点认为,立法控制和司法控制是应对行政自由裁量权滥用的有效手段,但却忽略了行政控制的作用。对待行政部门及其行政人员,我们不能单单把他们看作是原罪,只是片面地加以规制,更要看到他们积极向善的一面,要看到行政自制的可能性和可行性。行政自制相对于立法控制的笼统性、司法控制的滞后性,有着主动性、效率性和及时性等天然优势,能够弥补立法控制和司法控制所带来的不足。

Administrative discretion is an important part of China’s administrative power and a necessary means to deal with the endless administrative affairs in modern society. However, because admin-istrative discretion has strong subjectivity, it often leads to the abuse of administrative discretion. The traditional view is that legislative control and judicial control are effective means to deal with the abuse of administrative discretion, but the role of administrative control is ignored. To treat the administrative departments and their administrative personnel, we should not only regard them as the original sin, but only regulate them one-sidedly, but also see their positive side for the good, and the possibility and feasibility of administrative self-control. Compared with the generality of legisla-tive control and the lag of judicial control, administrative self-control has natural advantages such as initiative, efficiency and timeliness, which can make up for the shortcomings brought by legisla-tive control and judicial control.