论文部分内容阅读
行政的自由性与羁束性是行政法学的核心命题,如何对高度专业性的行政行为进行司法审查,是缓和司法权与行政权之间张力的关键。高度专业性行政行为的核心是行政判断余地,基于“基本权利”的正当性基础,人民法院可以对其进行审查;但是如何保障理性决策与公众参与,且不至于人民法院代替行政机关作出判断,是高度专业性行政行为审查的关键。本文以案例引入,同时以台湾地区为镜鉴,试图通过实体审查与程序审查相结合的方式,破解高度专业性行政行为司法审查的难题,以期对未来提供指引。
Administrative freedom and restraint are the core propositions of administrative law. How to conduct judicial review of highly professional administrative actions is the key to easing the tension between judicial power and administrative power. The core of a highly professional administrative act is the room for administrative judgment, based on the just basis of “fundamental rights ”, which can be reviewed by the people’s court; but how to ensure rational decision-making and public participation and not to be replaced by the people’s court Judgment is the key to a highly professional administrative review. At the same time, taking Taiwan as a reference, this article attempts to solve the difficult problem of judicial review of highly professional administrative act through the combination of substantive examination and procedural examination in order to provide guidance for the future.