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一直以来各类专项整治行动数见不鲜,但学界对于此类运动式执法的定性研究并不多,将其与行政裁量怠惰联系的理论研究亦少见,法律规定与司法审查也存在不足。本文以“醉驾”专项整治行动为例,欲从比较法角度归纳出裁量怠惰的含义,进一步区分与其相似的概念,从而尝试探讨裁量怠惰的构成要件。结合对裁量怠惰的评价与瑕疵后果的分析,从司法层面对裁量怠惰行为进行判定,提出相关“红头文件”的处理方式,针对行政决定是否执行分别适用变更判决与撤销判决。
There have been quite a few special rectification actions all along. However, there are not many qualitative researches on this kind of exercise law enforcement in academia, and there are few theoretical researches on its connection with administrative discretion laziness. There are also inadequate legal provisions and judicial review. This paper takes the special rectification action of Drunk Driving as an example, trying to summarize the meaning of discretionary laziness from the perspective of comparative law and further distinguish the similar concepts to try to discuss the constitutional elements of discretionary laziness. Combined with the evaluation of slackness and the analysis of the flawed consequences, the author judges the discretionary slack behavior from the judicial level, puts forward the relevant “red-head file” approach, and applies the change judgment and the revocation decision respectively for the implementation of the administrative decision.