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我国对行政规则拘束力的制度设计忽视了风险规制中权力配置的特殊性。无论预测性与平等保障,还是风险规制的专业知识与功能主义考量,都不足以构成司法对风险规则领域行政规则尊重的理由。我国实践与学说所推崇的司法对该类行政规则高度尊重的主张不仅误解了行政规则拘束力的内涵,还将严重地损害立法对行政的合法性控制,使得风险规制的立法目的和规制原则无法得以贯彻。考察该类行政规则对司法的拘束力应当从法律授权的意涵出发,既要保障风险规制中的合法性约束,又要避免司法陷入专业判断的漩涡。
The design of the system of the binding force of our country’s administrative rules ignores the peculiarities of the allocation of power in the risk regulation. Both the predictive and equal protection, or the professional knowledge and functionalism of risk regulation, are not enough grounds to justify the administration’s respect for the administrative rules in the field of risk rules. The proposition that the judiciary highly respects such administrative rules, which is praised by practice and theory in our country, not only misunderstood the connotation of the binding force of administrative rules, but also seriously undermined the legislative control over the legitimacy of the administration, making it impossible to regulate the legislative purpose and the principle of regulation of the risk regulation To be implemented. Examining the binding force of such administrative rules on the judiciary should start from the meaning of legal authorization, not only guaranteeing the legitimacy and restraint in the regulation of risks, but also avoiding getting the judiciary into a whirlpool of professional judgment.