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现代社会是一个风险社会,作为回应,风险规制活动广泛兴起。然而,“面向未知而决策”的特点,意味着政府往往需要在知识尚不充分的情况下即采取规制行为。这导致法律对行政的约束软化:通过授予大量的裁量权和放松比例原则的要求,行政机关拥有了更多的选择空间。面对这一扩张了的行政权,可以考虑采取一种程序主义的进路,使决策建立在对已有知识充分探索和审慎考量基础上。其中,又特别需要注意妥善处理科学与民主的关系。
Modern society is a risk society, in response, the rise of risk regulation activities. However, the characteristic of “decision-oriented for the unknown” means that the government often needs to take regulatory action when the knowledge is not sufficient. This has led to a softening of the law by administrative restrictions: the executive has more room for choice by granting a great deal of discretion and relaxation of the principle of proportionality. In the face of this expanded executive power, a procedural approach may be considered that will allow decision-making to be based on full exploration and careful consideration of available knowledge. Of these, special attention needs to be paid to the proper handling of the relationship between science and democracy.