Discretion and the Limits of Planning - Based on comparison with the general administrative discretion Thinking

Keywords: administrative planning / Planning discretionary / boundaries

Abstract: With the "Planning Administration" era, from the administrative discretion of Germany developed on the basis of a "discretionary plan" of the concept. It has its own distinct legal personality and administrative discretion are "quality" differences, this is large extent, stems from the Planning Act, "the purpose of - means" the normative mode of structural characteristics. As planning for the future construction and planning law norms, and many other reasons, the law focuses on the realization of planning discretion, not law enforcement, the rule of law doctrine of "hollowing out" dangerous. grasp of the limits of planning discretion from legality, necessity, consistency and interest balance planning several aspects of consideration.



In modern society, administrative planning is playing an increasingly important role and impact. "Administrative plan and the plan to start on plans for the Chief Executive, is considered one of the important characteristics of modern administration." [1] as a planning discretion species of special application to the Chief Planning and distinguish the traditional concept of administrative discretion, administrative planning for the construction of its own theoretical system and the formation of great significance in recent years, the study abroad administrative planning, has become a focus of the study. As planning for the future Normative Structure and Planning Act, and many other reasons, the Rule of Law in the areas of administrative planning "hollowing out" of the danger, how to grasp the limits of planning discretion must be important practical issue.

First, the formation of the concept of planning discretion
In modern society, to be used in administrative planning, more and more programming have become more increase in the formation of the planning tradition of discretion and the different administrative discretion is also known by the people gradually, planning also emerged the concept of discretion. Planning originated the concept of discretion in Germany in 1960, the German Federal Building Law enacted the relevant provisions of the concept of a produce of the soil preparation, according to the relevant provisions of the Act, the formulation of city construction planning matters within the township of autonomy [2]. the decision of Town Planning content independent "planning high-power." But "planning high-power" is subject to general principles of the Constitution and the law and federal law binding .1969 construction, the Federal Administrative Court in the township planning based high-power developed in the decisions on the planning concept of discretion. decided that the federal law on the township building area of ​​responsibility in their construction management plan to develop the required intent, not only acknowledged the township's planning high-power, but also means that the recognition of planning discretion. planning permission, including the formation of more or less room for freedom, and must include the room. because there is no formation of free programming, is in itself contradictory. planners to create a free, not based on a particular mental effects, but contains their understanding, assessment, evaluation, desire and various elements. for the discretionary programs of formation, some people call it "the formation of free planners," but more people still call it "planning discretion." [3] "in the formulation of administrative planning, compared with the general discretionary act, the Chief Office have even broader freedom determine the scope and form. This is the so-called discretionary programs or plans to form of freedom. "[4]
Discretion in terms of administrative planning for the inevitable, as some scholars put it, "without the formation of the plan itself is the contradiction between freedom" [5]. To sum up, this necessity mainly from three aspects:
First, administrative planning and the future of the characteristics of its own related to the situation as it is the forecast for the future and settings, so based on the limited capacity of human knowledge, the law can not be the case for the future provision completely accurate, it can only broad freedom to determine how the space to the discretion of the executive. "because the plan is based on the specific circumstances of administrative structure, as the chief goal of the development blueprint plans by the substantive law content of the administrative constraints to be completely impossible. even want to advance with legal provisions of the program content to the constraints of physical law, but also prompted to determine the direction of abstract elements and so on discretionary administrative guidelines suggest it. "[6]
The second is characterized by the Planning Act the decision itself, because of its structure with the purpose of the program's specifications, there is no clear legal elements of the content and legal effects subsumtion the provisions of its provisions are basically only have broad discretion benchmarks and constraints, guidelines role. traditional legal structures are "elements - effects model" conditions the program, a complete legal norms in the structure constituted by three elements, assuming, treatment and sanctions, when the facts meet certain legal requirements, then place a kinds of legal effect, comply with the model syllogism. and programming construct is a "purpose - means model" The purpose of the program, the purpose of certain provisions of the law itself, and a comprehensive choice for a variety of means, and no obvious assumption, processing and sanctions and other elements. Planning Act, although the administrative aspects of course be a prerequisite to achieve a particular purpose, but no such condition as to provide program administrative activities of the constituent elements of individual premise is not the abstract in accordance with the provisions established for the implementation of subsumption , but according to their own creativity, formative guidance and initiative and determination to be realized. is generally believed that the purpose of program planning method using norms and conditions of the program using the traditional legal norms have the following differences: (1 conditions, the program concerns law enforcement, emphasize the implementation of functional specifications, and the purpose of the program were concerned about the implementation of the law, emphasizing the norms of society to function. subsumtion thinking is lost in the planning method to construct the foundation of the traditional law of syllogism are no longer applies to planning law. but to various interests, the necessity measure, and predict the future development of the law as a benchmark to achieve the formation of form. The Chief of the key is to achieve their goals is that the planning and implementation was only a subordinate significance, because in the implementation stage, basically the tide, with the start step by step planning is bound to happen. Therefore, regarding the implementation of the functions, conditions regarded as the focus of the program legal norms, legal norms in the purpose of the program only has from the property. (2 conditions of the program with the last point of general norms in order to achieve individual incidents that have occurred for the specific regulation, the purpose of planning the program has a future point of legal norms aimed at achieving overall society to function, and the national context of modern society take under the administration more "social shaping the activities of the task" fit. [7]. and planning function of the social formation correspond to programming norms compared with traditional legal norms, "norms" of relatively weak, and " policy "is relatively strong. As the Chief Planning has set the normative order of the quasi-legislative nature," with a strong policy of the act "[8], and sometimes involves the composition of political decision-making, including that a large number of The values ​​of extrajudicial mixed one. If the decision to avoid the policy, strongly emphasized the value of the legal form of objective neutrality and judgments, may actually distort the nature of planning law. (3 traditional administrative law, the legal requirements for individual specific events, the nature of local legal norms, the structure is complete. planning law is the intended target, and select the means to achieve goals in order to achieve the formation of functional integrity of the social, legal norms have non-specific and incomplete open Characterization. [9] As the above features Planning Act, the rule of law doctrine faced in the field of administrative planning "hollowing out" of the danger.

The third is involved in planning the interests of discretion is one of many, and with the objective are different for different situations, so the law may be predicted in advance the interests of some major, but can not foresee all of the interests of the responsibility for the interests of the measure can only pay by the executive to complete.

Discretion through the planning process of the formation can be seen that the essence of this concept is actually a legislature and judiciary of administrative agencies in planning for the recognition of the formation of free space. This recognition reflects a certain sense, the face of planning legislation and judicial discretion of the helpless. Because development of legislative purpose only - means of the program structure programming, had to implement their part of the law transferring powers to the executive and the judiciary face of administrative planning, the strength of its review, nor greatly reduced. judicial developed through the decision "planning discretion," the concept of phase with the traditional distinction between administrative discretion and thus to justify such judicial helplessness, to avoid the embarrassment of intensity into the review. through the recognition of this legal phenomenon, I believe that the following the significance of several aspects:
First, you can give the executive more flexible planning the development freedom. Administrative organs in their own planning decisions more autonomous space activities, without the constant fear of overstepping the legislative power.

Second, legislative and judicial avoid the waste of public resources. The Chief Planning is the modern administrative state, a natural phenomenon, to recognition of this phenomenon, first recognized planning discretion, the pointless and unnecessary legislative or judicial constraints, since any such over restrictions are in vain, will only result in waste of public resources.

Finally, better theoretical understanding of the special nature of administrative planning of the act provides a good perspective. Whether it is planned in the future, planning the content of the rule of law or planning are closely related with the planning discretion, through its individual can grasp a better understanding and planning related issues.

Second, the unique legal personality planning discretion
Discretion of the executive, the first was undoubtedly the German scholar FFMayer, he published in 1862 <<Administrative Law Policy "" was Written put forward the theory of administrative discretion. [10] Since then, the administrative discretion of the administrative law scholars a lively discussion of the theory. If the theory of administrative discretion in 1862 as the formation of a point in time, then, to the discretion of the 19th century the concept of 60 years planning the formation of a century between the full time span. After a century of development and research must become more mature theory of administrative discretion, in such circumstances, but also the formation of a planning discretion of the concepts and theories, then according to people's common sense, planning is different from discretion must have significant administrative discretion of the distinct legal personality. But the surface, the planning and administrative discretion given to administrative discretion are essentially free to decide a certain space, it may just have the amount of space the size of the difference. In addition, the two also have qualitatively different? discretion in the planning concept first formed in Germany, the academic for this is controversial. "discretionary act of discretion on the program and administrative plans between discretion and whether the amount of difference not only in simple, there are qualitative differences in the existence of the doctrine of boundary disputes in Germany. "[11] So there is no discretionary planning its own unique legal personality? this issue requires the comparisons with the administrative discretion to find the answer.

The traditional sense of the legal norms are constructed using the program conditions, that element - the model results. In theory the formation of administrative discretion for a long time, it relies upon discretion, "Elements of the law", it also exists in the "legal effect "at home. to 50 years in the 20th century, some scholars advocate the legal elements of discretion and the discretion to distinguish between the legal effect of the former does not belong to the scope of discretion, and for his proposed legal concepts and judgments of uncertain scope of the theory. administrative authority on conducted by some of the legal effect of discretion is generally referred to administrative law theory of administrative discretion, also called the narrow sense of administrative discretion, the Chief authorized by law, constitute the elements of the law to achieve, it may decide whether to make the occurrence of the legal effect, or select any legal effect occurred. The former is called discretionary decision, which is known as discretionary choice. As the law does not apply to retain the scope of their creative executive to act, or in the preparation of various planning When, with the freedom to judge and evaluate, though the decision also involves the administrative freedom, but nothing subsumtion Elements of the decisions and the legal effect, belongs to the broad administrative discretion, also known as the formation of discretion. [12]
From the above we can see the distinction between planning and the general sense of discretion is the obvious distinction between administrative discretion, and this distinction is not just the amount of the difference, but qualitatively different. To explore the reasons for this difference , legal norms must be constructed from the start. above mentioned, due to the conditions of traditional law program is the use of "elements - effect" mode, when to meet a legal requirement, it will have any kind of legal effect, so the executive behavior engaged in by law enforcement of the law, and the purpose of programming code used is the "purpose - means" model, according to the purpose of the executive authorities, the means to set the guidelines and planning parameters, is the realization of the law, neither the legal requirements achievement problems, there is no corresponding legal effects. Therefore, the legal elements of administrative discretion is limited achievements, in the range authorized by law to decide whether the legal effect of what occurred or the occurrence of legal effect. The discretionary planning facts of the case because there is no specific Han was taken in legal requirements as a prerequisite, and is not subject to the legal effect of the restrictions, only under the guidance of a certain purpose, measured according to the results of the interests of freedom to judge and evaluate ways to achieve their goals set, the appropriate date and purpose of the operation and the relationship between means and the formation of the order specification is in fact the function of society to play. "plan in the field of administrative discretion ... ... plans to play an important role. It has never been the Chief in the enforcement of the law, given the law Elements within the scope of the legal subsumption of the room, or select the permissions are different legal effect. In contrast, the final construction plans with the nature of norms, the Chief may be within the limits prescribed by law, plans to form its effect, because 'without the formation of free The plan itself is the contradiction '. "[13] Thus, the traditional theory of administrative discretion, and discretion can not be applied in planning the operation, the difference between the two, not only in quantity, that is, planning discretion under the law to clear a large space on administrative discretion, but also qualitatively different.

Planning discretion to face a lot of uncertain legal concept, but it's such a discretionary and administrative discretion in the aforementioned split off from the traditional legal concept of legal uncertainty in the interpretation, application and determine the scope also exists a qualitative difference. Planning Act of uncertainty in the formulation of legal concepts to provide for planning purposes only and should consider the interests of the guidance elements, does not include specific facts subsumption legal requirements, in addition to the special provisions of the law, courts generally will not review the results of discretion . The traditional legal concept of uncertainty in the law exist in law elements into the goal was to carry out the specific facts of the case subsumption, the executive in addition to determine the scope for individual issues are outside its interpretation and application will be subject to court review.

Third, the planning boundaries of discretion
Youyu planning and general administrative discretion Discretion different, it is not Xiaoguo discretion, but a formation of discretion, the purpose is to encourage social function of the formation, and thus comparison of its boundaries are relatively obscure. Because ģ��, more need to explore.

(A compliance with the requirements of legality?
1. Is organized law license?
Different matters Neirong the Xingzheng planning should be a different administrative organs to develop within their competence, some important Xingzheng planning, especially those with mandatory binding Xingzheng planning often by laws specifically authorize the executive to develop specific. As Now matters are very complicated, often criss-cross of relationships, so inevitably an administrative planning among different administrative bodies involved in matters of authority, then in this case, the plan should be jointly developed different administrative bodies. In order to improve administrative efficiency, Germany and Taiwan of China's plan to determine program provides a special focus on the effectiveness of powers, that is planning to develop the content of organs involved in the planning of the executive authority of other matters, they can seek their advice, planning authorities in determining planning to determine After the contents of the time do not have to involve the consent of the executive authority, and uniform exercise of its powers.

Authority for the matters specified by law, if you do not comply with the provisions of the Organic Law, the formulation of administrative planning constitutes the unauthorized and illegal. Under the statutory authority, the principle of ultra vires is not valid, administrative planning should be invalid or revoked. So in this case Planning, of course, does not exist discretion legitimacy.

2. Compliance with procedural requirements?
Administrative Procedure Act is the regulatory authority planning powers to prevent the arbitrary exercise of the operation and an important means of proper administrative procedures are also planning to provide administrative legitimacy, such as openness, public participation, and so are conducive to enhancing the legitimacy of the administrative planning. Because "if justice the rules are not just applicable, the public pressure can often correct this injustice. "[14] discretion in the planning process, the executive should fully heed the opinions of experts and people in the law, regulations, rules and related administrative regulatory documents, much has been such a provision. even some of the more stringent documentation requirements, in fact, by forcing a way to listen to the people planning to develop institutions and experts. If <<State Council on Strengthening National Economic and Social Work on development planning advice>> states: "In addition to laws, administrative regulations and involving state secrets, the plan approved by the legal process shall be promptly released. without convergence or expert appraisal of the plan, shall not be submitted for approval and promulgated. "When some of the most basic elements of due process do not have the time, people have every reason to doubt the legitimacy of the existence of planning content. According to the modern general principles of administrative procedure law, in this case, the administrative planning may also null and void or voidable. This also shows the importance of planning discretion.

3. Planning the content is in compliance with the provisions of norms and guidelines?
Programming the contents of the specification is limited to the specific plans and guidelines for the role, aims to regulate the content of planning the scope of the provisions of planning rather than specific content. Because of specific administrative planning is based on different projections made by the objective situation and goal setting, Therefore, specific issues will vary, the provisions of the law can not be made, but the scope of its general framework for content regulation. when the specified content areas, and sometimes will use a mandatory requirement, the general use "should" and expressed absolutely clear that certain words or certain elements of the content matter is planning mandatory, then in this case, the scope for the content of the law, the executive authorities in the development planning must be included, that is, give up these issues discretion of the content is compressed to zero. If <<Town and Country Planning Act "> Article 17, paragraph 2, states:" The planning area, planning area, construction land, infrastructure and public service facilities, land, water sources and water systems, the basic farmland and green space, environmental protection, natural and historical and cultural heritage protection and disaster prevention and mitigation, etc., should be the overall urban planning, the mandatory content of the town master plan. "content for the mandatory provisions of law on matters outside the scope of the executive is according to the actual situation and the discretion of the planning objectives of the different trade-offs.

In planning the specific content, since the objective conditions are different, ever-changing, and planning is a forecasting and setting future goals, so the content of the law itself, for planning what is impossible to make specific provisions, the legislature can only be authorized executive benefits under the planning guidelines and the requirements of the principle measure of judgments and discretion. The decisions of the executive self-space is very large, not as traditional as a relatively specific administrative discretion "space" standard, which is the second are the core of the major differences.

The provisions of the guiding principles in planning, often involving a variety of objectives and interests, and goals and objectives, interests and inevitably there is a conflict between the interests, then develop plans, goals and interests of the conflict on how to choose the law general and not clearly defined our priorities out of order. This is largely due to planning issues faced by their great complexity, the specific choice of conflict, the legislature is difficult to predict accurately in advance of the only by the executive authorities in the formulation of plans for the time judged according to specific circumstances. If <<Town and Country Planning Act "> Article 4, paragraph 1:" The formulation and implementation of urban and rural planning, urban and rural areas should be followed, rational distribution, saving land, intensive development and planning of construction of the first principle of improving the ecological environment and promoting resource conservation and comprehensive utilization of energy, protect arable land and other natural resources and historical and cultural heritage, keeping ethnic characteristics and traditional style, to prevent pollution and other hazards and in line with regional population growth, national defense, disaster prevention and mitigation, and public health, public safety needs. "This provision made clear in urban planning should be considered to achieve the objectives and interests, but for these interests, which should be priority considered, which can be considered on the back, one of the provisions of this section is not able to see that. as in a historical and cultural city, might be the historical and cultural heritage, traditional style of the city first, and a the natural beauty of the new cities may be well known local character and natural landscape will put priority position. be noted that the planning guidelines should be considered under the basic value orientation and the potential benefits framework and benefit weight Yuan Ze solution The question is how the planning of specific measures for specific interests, the two are different. The former can not replace the latter in the interests of the measuring process and results, both the starting point to solve the problem tend to be different.

(B meets the requirements of the principle of necessity?
Principle of necessity for the planning requirements also called the legitimacy of planning, involving the development of planning for the achievement of the goals the need for planning. In other words, planning and development for planning purposes it is necessary to achieve, then develop Planning it has legitimacy. If <<State Council on Strengthening National Economic and Social Development Plan for the preparation of a number of observations>> states: "The preparation of plans, you must do a good job based survey, information collection, research, and integrated into the planning of major projects feasibility studies and other preparatory work, timely communication and coordination with relevant parties. preparation of the national special plan, the preparation of planning departments should develop work programs, the need for clear planning, convergence unit, of reasoning, scheduling, and approval authority, etc., and send coordination of relevant departments. "here talks about" the need for clear planning "is actually about the need for the premises requirements of the principle.

Examine whether the need for the formulation of planning requirements of the principle has an important role in the foundation, the next step is an important prerequisite for planning behavior. To the German construction planning, for example, includes three levels of review: the first level review, the planned whether the program is necessary, the second-level review of the statutory planning framework for planning guidelines or whether it has been observed, the third-level review of whether the requirement to measure the pros and cons to be considered. [15]
First need to clear is the need for principles of planning regulation only if the necessary planning for the development and not with whether the content of the legitimacy of planning, the former more of a procedural sense, considering that it is planning to solve the problem whether should be developed, while the latter is more justification for the identification of physical content, it solves the problem is how to formulate plans. In other words, speaking from the stage, the principle of necessity applies only to the specific plan developed before the enactment of the necessary planning to determine of stage, while planning the legitimacy of the content development process for planning after the start of contents planning stage of specific decisions, planning decisions should be the content of Zheng Dangxing main principle of the measure of interest problems.

Since the planning principle of necessity requires the formulation of plans to achieve for planning purposes it is necessary, then on its meaning is a deeper problem will emerge, that is what is necessary to determine the need for standards? This is also related to the planning principle of necessity a central issue. is generally believed that this need should be a reasonable need for the development plan unless there is need for a clear and significant unreasonable, it should be considered a necessity of compliance with the planning principles. What is Obviously, a major unreasonable? mainly refers to the formulation of administrative planning purposes and is not based on administrative implementation of the public interest, but clearly inappropriate for other considerations, the objective to highlight the performance of objective reality and things with the law of development does not match, or in the present conditions, the administration simply can not achieve the purpose of planning, or for a long period of time can not be achieved, and as "a long time" to pass, will definitely lead to significant losses, even if the planning be achieved is difficult to make. If some local leaders are now keen to engage in performance engineering, project planning ostensible purpose of this general is to develop the local economy, enhance the city image, and so, in fact, some local leaders are often promoted for further The rush to make a "performance" needs. so that project planning is the need for some non-conforming requirements of the principle? The answer is no, the principle should be based on planning criteria for judging the need for detailed analysis. Although the objective individual leadership, including the composition of quick success, but if its necessity is not obvious, major unreasonable, the principle is still the need to meet planning requirements. However, if a poor county, neither tourism resources, there is no major industry project, the traffic is very inconvenient, government leaders an excuse to improve urban quality, economic development, attract investment planning and construction of the grounds of a five-star hotel, in fact, urban construction in order to highlight their achievements, so in this case, due to the objective conditions and constraints of economic level, certainly very few people stay at the five-star hotel, not only difficult to achieve their own purposes, by the improve urban quality and economic development, attract investment purposes may also be bound to achieve little, there was clearly the need for planning , significant unreasonable, it did not meet the requirements of planning principle of necessity is inevitable.

Links to Research Papers Download http://www.hi138.com (the unity of the three meets planning requirements?
For planning systematic, holistic consideration, planning should be coordinated between, the upper planning guidance for the planning of the next bit and binding effect. This effect comes mainly from the executive leadership between different levels of the hierarchy and the led . upper-level planning is usually a higher administrative authority by the established, the next bit of planning is often the lower-level executive development, so the development of plans, there should first examine the upper plan exists, in some cases, should be consciously accept the guidance and restraint. Even in foreign countries and Taiwan of China with considerable local autonomy of local public entities to develop the plans have higher administrative organs to Shou planning constraints, "like the right place who made plans for the country, The right of lower plans were made to local public bodies, if the host program has the function of a certain region in the future, morphology, development and other first confirmed, local public bodies in fact impossible to formulate different ideas or plans. "[ 16] Secondly Guihuazhijian also stems from the upper and lower effectiveness of different sources, sometimes in positions under the Wei planning is formulated on the basis of planning, including "<Town and Country Planning>> Article 19:" City People's Government of rural and urban planning department in accordance with the requirements of the overall city planning, the organization controlling the preparation of the detailed planning of the city ... .... "From this article can be seen controlling the overall urban planning is the detailed planning of the city foundation and basis for the former so the latter should converge and maintain consistent.

Planning, Programming and upper lower convergence plan mainly for the purpose of the former and the latter can not be contrary to, for example in the planning of development and utilization of grassland, the upper is for planning purposes the protection of grassland, then the next bit of planning if the ecological protection disposed to develop side Yiwei, then obviously contrary to the host program. Second is also reflected in the means of planning the next bit also means not inconsistent with the host program, such as in urban construction plan, upper plan provides for a certain place in the next few years Ba into a scenic, but not acquisition of agricultural land, if the next bit of planning regulations can be requisitioned in the next few years, agricultural land, then obviously inappropriate.

(D measure of whether the interests of the requirements of the principle?
Administrative planning is actually the executive exercise of executive power to break the existing pattern of interests the interests of re-allocation and coordination of the process, some scholars in the study on the basis of administrative planning process, that "the Chief of planned behavior" was "for the best way to achieve the objectives set under the existing conditions to conduct system preparation and rational design process is to achieve a specific design of the system and coordinated a variety of different and even conflicting interests in the process. "[17] To ensure the interests of the configuration the appropriate administrative planning in the development of the relevant interests is bound to be fully measured. It is generally regarded as the principle of the interests of the measure of discretion to regulate the planning of the core principles, is also considered to determine the boundaries of the main planning discretion standard. "administrative Planning Law is the structure function: adjustment program involved a variety of public and private interest I choose to achieve the purpose of administrative plans. And in this process were essential at every stage, is the total of the 'interests of the measure' . It can be seen, the Chief Planning Law in the legal establishment of the structural characteristics, the very need and fit 'should be measured by the principle of' the role and development 'should be measured by the principle of' do as the rule of law inherent principles of nature programs, or can be is the rule of law program Law slogans. "[18] on matters of interest of administrative planning measure, which is a basic requirement in itself is not prescribed by law for the elements." Even if there is no legal requirement, under the rule of law principle measurement principles apply to all programs. "[19]
The legal sense, the interests of the measure is being used earlier in the trial in the field of private law and judicial practice. Although introduced relatively late, the principle measure of interest has gradually become an important field of administrative law principles. It is the main content means that the executive authority making any decision, consideration should be comprehensive, not one-sided pursuit of public interest or the interests of a party, must also respect and consider the different interests, that should be conflicting interests, especially public and private interest, to strike a balance considerations, and according to the actual situation, objective measure of choice. [20] aim is "to ensure maximum realization of the interests of all parties." [21]
Administrative investigation was planned as the center of the principle of the interests of the purpose of measuring down to three points: First, the pursuit of justice cases. As the Chief Planning involves many interests, tend to form a "fabric of interest" in such a chain reaction will also affect many other interests, not only recognizes only a particular interest. in planning law, all the specific results to be of interest to measure the role of the principle, that is the case the interests of justice must be measured by and may only manifest after the adjustment. Second, adjust the public and private interest conflict. in the public interest and public welfare, public and private interest conflict between the interests of the measure, they tend to adopt different standards for different evaluations of the results generated. It was suggested that To meet the "amount of most extensive" and "the highest quality." called "the most extensive amount" refers to the largest number of beneficiaries, most people stick as closely as possible the benefits, and "the most extensive quality" is the intensity for the beneficiary may be, who more closely related to human survival factor, the more a "highest quality" in nature. in specific cases, to combine practical situation to be. The third is to reconcile the pursuit of efficiency and protection of human rights. of utilitarianism easily lead to the pursuit of human rights violations, especially the rights of minorities causing compromised. [22] In short, the ultimate goal is to achieve justice, the balance between the interests and maximize benefits.

Planning process of the formation of the interests of the measure include the following:
First, the interests of the investigation and collection. "Planning is a 'multi-formation process of decision-centrism', in the process, there is the possibility of the formation of a variety of results, and will involve a large number of interests and values." [23] the interests of investigation The purpose of administrative planning in the development of an objective to find planning related to the interests that include not only the public interest, but also a variety of private interest. bring together the interests of the investigation and not aimlessly, but to the planning objectives as a benchmark, on the basis of investigation into the benefits brought together in order to facilitate its comprehensive analysis and evaluation. interests of the investigation and the collection is the basis of the principle measure of interest, if even to those involved in planning the interests of all not clear, the interests of the measure will not be able to achieve a comprehensive, objective, measurable results may be biased or wrong, or simply can not be effectively measured.

Second, the benefit analysis and evaluation. As the Chief Planning often involves many complex interests, it is not that the interests of all must be measured? This requires the analysis and assessment of an administrative decision. "Some small, make this may be required to interrupt (the importance of the interests of some interest is improper request, put forward this idea of ​​people harbor the purpose of delay or disrupt the proceedings (the legitimacy of the interests, some interests and irrelevant and should not be included considered and balanced range of (related interests. "[24] for some important benefits, the law would be clearly defined, the executive authorities in the formulation of planning analysis and evaluation must be made. According to the German administrative court decision the views of practice should be to the measure of interest is not subject to the provisions of law, all worth protecting the public and private interest are the object should be measured. [25] Here the phrase "worthy of protection," meaning, should be more important interests of the petty interest is clearly not "worthy of protection" in the column.

Third, the interests of balance and coordination. Into the measuring range is possible between the interests of conflict, then there is a need for balance and coordination, which is planning the content of the formation of one of the most important process. In the process of coordination should ensure that the interests of the expense of the interests of the extent and proportion to achieve. also need to clear is that sometimes the public interest is not necessarily a priority in the private interest, according to the specific situation to judge. to guide the planning of construction in Germany, for example, "The balance of public and private interests is to develop mentoring programs in building a core issue. in the building code article 1, paragraph 6, the legislators did not clear the public interest or private interests who is a priority, so the community must decision on each case, what interests are important and which interests to be placed on the back. in principle, the interests of all are equally important, only the statutory provisions there is no trade-off priority the possibility of other interests are the trade-off can be. " [26]
�滮����ԭ��Ҫ�����ƶ��滮ʱӦ�������������,��ô�����������������ȷ���ʵ�����?ʵ�����γ����������覴õ�����.һ��δΪ����,Ҳ��Ϊ������Ƿȱ.����������ָ�����������ƶ������滮ʱ,Ӧ�ý����������,���Dz�û�н���.����覴����������������Ƿȱ,�����Ǹ�������֮�������Ƿȱ.�������������ϵ�״̬�Ͷ������ں���覴õĹ��ɲ�û��ʲôӰ��,�����ǹ��⻹�ǹ�ʧ����.���Ǻ�������©,Ҳ��Ϊ�������֡�����Ƭ���.��������ָ���������ڽ������������ʱ��û�аѹ滮�漰����ijЩ��Ҫ��������������ķ�Χ.��<<���й滮���ư취>>��19���涨:"���Ƴ��й滮,���漰���з�չ���ڱ��ϵ���Դ���úͻ�������������Э����չ���羰��ʤ��Դ�������Ȼ���Ļ��Ų�������������ȫ�͹�������ȷ��������,Ӧ��ȷ��Ϊ�����ϸ�ִ�е�ǿ��������."������ƶ����й滮��ʱ��û�аѻ�����������Ȼ���Ļ��Ų�������������ȫ�͹��������������������ķ�Χ,��Ȼ�Dz������������ԭ���Ҫ���.���Ǻ���ʱ�Ĵ�������.����ָ�滮�ƶ����ض����漰��������Ҫ�Եȵ������˴���Ĺ������ж�,��ijЩ��Ҫ��������Ϊ����Ҫ,���ijЩ΢�������������Ϊ��Ҫ.���ִ�����������ջᵼ�¹滮���ݵIJ��ʵ�.���Ǻ���ʧ��,Ҳ��Ϊ��������,����ʱ�IJ��ϱ�����.������ָ�ڽ��������Ȩ����Э��ʱ,������������滮Ҫʵ�ֵ�����֮�����ԵIJ��ϱ���.




Notes:
[1] [��]�Ҿ�������:<<������100��>>,�ձ�ѧ���鷿1990���,��120ҳ.


[2] �¹�����跨��������1960��6��23�հ䲼,���й涨���йؽ���滮������,��������滮��������ƶ��ȵ�,�÷���1976���1979������������޸�,�ص�����Խ���滮����������ݵļ򻯡�ȱ�ݵ��޲������Ƶȵ����ݽ����˵���.�¹�����1971���ƶ��˳��н���ٽ���,��Ϊ����跨�IJ���,�÷���Ҫ�涨�˽��跽������ٴ�ʩ�ͷ�չ��ʩ,�滮����Щ��ʩ֮һ.1986��10��23��������Ὣ����跨�ͳ��н���ٽ����ϲ�Ϊ�µ�����跨.�μ��������:<<����������>>,�й�������ҵ������1999���,��278ҳ.


[3] �μ���˼����:<<���������۵��������ƻ�>>,̨�帨�ʴ�ѧ1986��˶ʿѧλ����,��63��66ҳ.


[4] [��]������,�Է���:<<��������>>(��9��,�й������ѧ������2008���,��142ҳ.


[5] Vgl. Hoppe, Die Bedeutung von Optimierungsgebot im Planungsrecht, DVBL. 1992, S. 853 ff; BVerwGE 34,301. ת���Գ´�����:<<��������֮�о�>>,�س´�����:<<������֮ѧ������ϵ(һ����������Ϊ��ʽ��>>,�������1996���,��138ҳ.


[6] �˳��:<<�ձ�������ͨ��>>,�й����Ƴ�����1998���,��567��568ҳ.


[7] [��]��������.ë�׶���,�߼�ΰ��:<<������ѧ����>>,���ɳ�����2000���,��407ҳ.


[8] ����������:<<���������������Ϸ�>>,������ѧ�����硢�ߵȽ���������2005���,��296ҳ.


[9] �μ�[��]Զ�ٲ�Ҳ��:<<�ƻ�������>>,ѧ������1979���,��32��40ҳ.ת���Ը�˼����:<<���������۵��������ƻ�>>,̨�帨�ʴ�ѧ1986��˶ʿѧλ����,��51��52ҳ.


[10] �μ���������:<<��"��ȷ�����ɸ���"����������֮��ϵ>>,����������:<<���������ִ����ι���>>,̨���ѧ��ѧ����༭ίԱ��༭1982���,��40ҳ.


[11] [��]������,�Է���:<<��������>>(��9��,�й������ѧ������2008���,��142ҳ.


[12] �μ�������:<<����������>>,�Կ���,����ͼ��������޹�˾����2003���,��177ҳ,�´�����:<<��������֮�о�>>,�س´�����:<<������֮ѧ������ϵ(һ����������Ϊ��ʽ��>>,�������1996���,��137��138ҳ.


[13] Hoppe, Struktur von Normen des Planungsrechts, DVBL. 1974, S. 641; Vgl. Hoppe, Die Bedeutung von Optimierungsgebot im Planungsrecht, DVBL. 1992, S. 853 ff; BVerwGE 34,301. ת���Գ´�����:<<��������֮�о�>>,�س´�����:<<������֮ѧ������ϵ(һ����������Ϊ��ʽ��>>,�������1996���,��138ҳ.


[14] Michael D. Bayles, Procedural Justice, Boston: kluwer publishing company,1990, p.42.


[15] �μ��������:<<����������>>,�й�������ҵ������1999���,��282ҳ.


[16] ���ڵ���:<<�ִ�������ƻ�����>>,�����ڵ���:<<����������ԭ��>>,ѧ���Ļ���ҵ���޹�˾1998���,��207ҳ.


[17] [��]��˹��J���ֶ������:<<������>>,�߼�ΰ��,����ӡ���2002���,��180ҳ.


[18] ��γ����:<<Ӧ�����ԭ��֮�о������������ƻ�Ϊ����>>,�س���ģ����:<<������֮һ�㷨��ԭ��>>(��,�������1994���,��528ҳ.


[19] [��]������,�Է���:<<��������>>(��9��,�й������ѧ������2008���,��143ҳ.


[20] �μ��޴�����:<<�������򷨻�������>>,����ͼ����湫˾1993���,��67ҳ.


[21] �߼�ΰ��:<<��֤�ݷ��ϵ��������ԭ��>>,��<<�ִ���ѧ>>2004���4��.


[22] �μ���γ����:<<Ӧ�����ԭ��֮�о������������ƻ�Ϊ����>>,�س���ģ����:<<������֮һ�㷨��ԭ��>>(��,�������1994���,��505��510ҳ.


[23] Richard O. Brooks, The Legalization of Planning Within the Growth of the Administrative State, Administrative Law Review, Vol.31.1979.p.71.


[24] �߼�ΰ��:<<��֤�ݷ��ϵ��������ԭ��>>,��<<�ִ���ѧ>>2004���4��.


[25] �μ���γ����:<<Ӧ�����ԭ��֮�о������������ƻ�Ϊ����>>,�س���ģ����:<<������֮һ�㷨��ԭ��>>(��,�������1994���,��511ҳ.


[26] �������:<<����������>>,�й�������ҵ������1999���,��283��284ҳ. ת���� ��������������� http://www.hi138.com