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对行政裁量的规制一直是学术界的一个理论难题。理性裁量作为行政裁量规制的核心目标,内在地要求公众与政府之间的合作治理。晚近西方兴起的商谈理论认为,通过以宪法为中心的商谈机制可以调整与修正传统行政裁量控制模式的系统性偏见,平衡公民权利与国家权力的紧张关系,促进行政裁量的结构合理化,以实现理性裁量。在行政裁量领域,宪法商谈建制化既需要培养具有商谈能力的公民,又要求完善公民权利保障制度和建构灵活高效的商谈程序制度。
The regulation of administrative discretion has always been a theoretical problem in academia. As a core objective of administrative discretion regulation, rational discretion inherently requires cooperation and governance between the public and the government. The theory of talks that emerged recently in the West suggests that the constitutional-centered negotiation mechanism can adjust and amend the systematic prejudice of the traditional mode of administrative discretion, balance the tension between civil rights and state power, and promote the rationalization of the structure of administrative discretion so as to realize the rationality Discretion. In the field of administrative discretion, constitutional negotiation and constitutionalism not only need to cultivate citizens who have the ability to negotiate, but also improve the civil rights guarantee system and construct a flexible and efficient negotiation procedure system.