行政自由裁量权概念的迷思与匡正

行政自由裁量权概念的发达除客观需要之外，还有人为的因素，为行政扩张服务甚至为了逃避司法审查。然而，行政自由裁量权是一个可以被内化或转化甚至淹没的概念，虽然它是事先确定的一个指引但却是一个错误的指引。国家主权理论的衰微，行政权的弱化，行政种类多样，裁量空间的压缩以及部分裁量被“不确定法律概念”涵摄，行政自由裁量权风光不再。让行政自由裁量权概念在行政法领域尽快消失。以行政法的“裁量性规范”，将行政“裁量性事实”放在行政行为下考量，通过对其目的性、公益性以及合法性进行的判断，使其获得正当性基础。行政诉讼以是否应该作为、是否超越职权、是否滥用职权为司法审查内容，以确认判决、撤销判决、确认无效判决为判决方式，取消现行的变更判决。

THE MEDITATION AND CORRECTION OF THE DISCRETION IN ADMINISTRATION

Administrative discretion is a well-developed concept. On the one hand, there is an objective need for it in legal system, but on the other hand, it also includes artificial factore It becomes the pretense for the expansion of the administratio~ Although it is based on incorrect guidance that was established earlier, the concept of administrative discretion can be internalized and submerged~ However, the voncept is now losing steam, because the theory of national sovereignty is now fading, the power of administration is weakening, the administrative species are rapidly increasing, and the ＂uncertain legal concept＂ has now subsumed the compressed scope of discretion and other aspects of the discretion Thus, we must make administrative discretion in the field of administrative law vanish as soon as possible. Furthermore, we have to consider the ＂discretionary regulations＂ and ＂discretionary facts＂ which belong to administrative law under the administrative acts. We must give it a justifiable basis through judging its＇ purpose, public welfare and legitimacy. Finally, the administrative proceedings take the actions and omissions, exceeding authorities and abused authorities as the content for judicial review. Further, the courts have to cancel the current reversal of judgment, take the confirmed judgments, revoke judgments and confirm invalid judgments as the judgment ways.