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国内部分法院已有意无意地运用裁量收缩理论作出裁判,行政复议领域的张成银案与彭淑华案是其中的代表。两案作为典型案例可能已对下级法院的裁判产生了影响。裁量收缩理论并非万能,其优势在于可以迅速修补僵化的立法、避免曲解现有立法,可以仅通过个案约束裁量权,而非通过立法整体性地取消裁量权。其劣势在于其作用仅限于控制裁量权层面,且易导致司法权的过度扩张。
Some domestic courts have intentionally or unintentionally applied the theory of discretional reduction to make referenda. Among them, Zhang Chengyin and Peng Shuhua were the representatives in the field of administrative reconsideration. The two cases, as a typical case, may have affected the judgment of lower courts. The theory of discretional reduction is not a panacea. Its strength lies in its ability to promptly fix rigid legislation, avoid misinterpreting existing legislation, restrict court discretion by case law alone, and not eliminate the discretion by legislation as a whole. The disadvantage is that its role is limited to controlling the level of discretion, and easily lead to over-expansion of judicial power.