裁量基准公众参与模式之选取

公众参与作为一种直接的民意表达方式,可以提供类似议会立法一样的民主形式和内容,因而成为补充裁量基准正当性基础的首选方案。但是,基于裁量基准行政自制属性和行政成本的考量,它仍然不宜作为一项强制性义务强加给行政机关,而应由行政机关自主决定。实践中,行政机关应当以裁量基准的"质量要求"和"可接受性要求"为基本参考因素,比对相对人与自己的预期目标是否一致,根据其特殊性及实际情形,在"改良的自主管理决策"、"分散式的公众协商"、"整体式的公众协商"、"公共决策或共同决定"四种程度不同的公众参与模式中选择适用。

Mode Choice of Public Participation in Discretion Standard

As the application of legislative discretion power or a rule-making power, the legal effect of discretion standard is not from legislature, but administrative agency. In essence, discretion standard is a self-regulation rule which is made by administrative agency. In China, to enhance discretion standard''s democratic image as administrative rules, most of scholars believe that rule-makers should take advantage of the procedure of public participation to solicit public suggestions as much as possible. In the practice of discretion standard, this view has been recognized by the majority. However, there is no answer to the question why discretion standard should be controlled by public participation, which is a heteronomous system contrary to the autonomous nature of discretion standard, and no one refers to the answer about what extent to be used and the specific operating techniques of the public participation to the discretion standard. This is not only detrimental to the development of discretion standard, but also has produced many unrealistic requirements about discretion standard in the local laws and regulations. In my opinion, although public participation is probably the first choice because it is a direct public expression mechanism which can offer the form and content of democracy similar to the parliament, public participation should be treated as an alternative rather than mandatory obligation to administrative agency taking into account the discretion standard''s self-regulation nature and the administrative costs. In practice, administrative agency should take the quality requirement and acceptability requirement as two main factors, consider the goal of the administrative parties, and then make a choice among the four kinds of public participation mode by the reference to its particularity and the reality, that is, the mode of modified autonomous managerial decision, the mode of segmented public consultation, the mode of unitary public consultation, and the mode of public decision.