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行政裁量权的收缩是一个处于宪法和行政法结合部的问题。尽管此问题具有重大实践意义,但在学界未获充分重视。裁量收缩根源于事实和法律因素的结合作用。裁量收缩至行政机关的作为(或者以特定方式作为)和裁量收缩至行政机关的不作为(或者不以特定方式作为)存在显著区别。对于裁量收缩问题必须采取一种严格主义的立场。只有在若无裁量的收缩防卫性基本权或者宪法上的保护义务无法在最低限度上得到保障的情形中,裁量的收缩才是正当的。有观点认为,在警察法和公共秩序法中,侵害达到中等程度之时,裁量收缩至零便可成立,甚至认为,在建设法规制的特定种类的情形中,裁量收缩至零是常态。本文作者驳斥了上述观点。
The shrinking of administrative discretion is a problem that lies at the junction of constitutional law and administrative law. Although this issue is of great practical significance, it has not been given sufficient attention in academia. The discretionary contraction stems from the combination of facts and legal factors. There is a significant difference between a discretionary contraction to the agency’s actions (or in a particular way) and a discretionary contraction to the agency (or not in a particular way). There must be a strictist stance on the problem of discretionary power. Only in the absence of discretionary defensive basic rights or constitutional obligations of protection can not be guaranteed to the minimum, discretional contraction is justified. The view was expressed that in the police and public order laws, when the infringement reached a moderate level, the discretion could be reduced to zero and that even a certain type of situation in which the statutory system is to be constructed would be the norm. The author dismisses this view.