从裁量二元论到裁量一元论

裁量二元论长期以来是行政法领域中的支配性理论,它把裁量问题与法律问题作为各自独立的二元来理解;裁量一元论正好相反,它认为裁量问题与法律问题并非各自独立的二元,根本不存在不受法律拘束的自由裁量。裁量一元论自20世纪中期以来,随着大陆法系国家法院对行政裁量态度的转变而逐渐抬头;20世纪后期以来,更有取代裁量二元论之势。这一现象意味着大陆法系国家行政裁量观念发生了质变,其直接原因是“裁量滥用”法理的展开,更深层次的原因则是是法治国家理念的质变。

From Discretionary Dualism to Discretionary Monism

The discretionary dualism has long been the dominated theory in administrative law field, which understands the discretionary problem and legal problem from two independent points. On the contrary, the discretionary monism considers that there exists no discretion that is not restricted by law. This idea has become prevalent gradually since mid term of 20th century, and it tends to replace the discretionary dualism. This phenomenon means that the idea of administrative discretion in continent law system country has been qualitative changed, the direct reason of which is the spread of the reason of abuse of discretion, and the deeper reason is the qualitative change of the idea of rule of law country.