THE MEDITATION AND CORRECTION OF THE DISCRETION IN ADMINISTRATION

行政自由裁量權概念的迷思與匡正

行政自由裁量權概念的發達除客觀需要之外，還有人為的因素，為行政況張服務甚至為了逃避司法審查。然而，行政自由裁量權是一個可以被內化或轉化甚至淹沒的概念，雖然它是事先確定的一個指引但卻是一個錯誤的指引。國家主權理論的衰微，行政權的弱化，行政種類多樣，裁量空間的壓縮以及部分裁量被"不確定法律概念"涵攝，行政自由裁量權風光不再。讓行政自由裁量權概念在行政法領域儘快消失。以行政法的"裁量性規範"，將行政"裁量性事實"放在行政行為下考量，通過對其目的性、公益性以及合法性進行的判斷，使其獲得正當性基礎。行政訴訟以是否應該作為、是否超越職權、是否濫用職權為司法審查內容，以確認判決、確認無效辦決為判決方式，取消現行的變更判決。

Administrative discretion is a well-developed concept. On the one hand, there id an objective need for it in legal system, but on the other hand, it also includes artificial factors. It becomes the pretense for the expansion of the administration. Although it is based on incorrect guidance that was established earlier, the concept is now losing steam, because the theory of national sovereignty is now fading, the power of administration id weaking, the adminnistrative species are rapidlyincreasing, and the "uncertain lagal concept" has now subsuned the compressed scope of discretion and other aspects of the discretion. Thus, we must make administrative discretive in the field of admininstrative law vanish as soon as possible. Furthemore, 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' [urpose, public welfare and legitimacy. Finally, the asministrative 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 judgments as the judgment ways.