On The Uncertainty Of The Legal Concept Of Judicial Review

In recent years, accompanied by the establishment of the concept of the rule of law, as well as the outline of the State Council put forward administration by law, to re-clarify the executive power and judicial power, the relationship between the reasonable definition of the intensity of judicial review and begin to incorporate the vision of scholars, especially in the legal concept of undefined intensity of judicial review, even more so. After World War II, based on the satisfaction of tyranny and fear the expansion of executive power and reflection, the German administrative court in the transformation of the traditional autonomy of administrative discretion, based on the interpretation of the legal concept of undefined and Han perturbation of autonomy from the executive discretion to divest out of the field, in judicial review the scope of executive power to strengthen the norms and the ex post facto control, in order to better protect the vulnerability of a comprehensive human rights. However, the legal concept of undefined itself is different from the administrative discretion, whether or not only in law elements of the composition, or still exist on the effect of the law, the legal concept of undefined itself is a question of law or fact, uncertain whether the application of the legal concept of exclusive right to exercise, as one of the three powers of an independent judicial power, the law Why in the concept of undefined can be the executive power of judicial review, the basis of its review of what? Further, if the judicial power of the executive power to apply the legal concept of undefined of the process to be reviewed, then a limit where it is based on a comprehensive review of the executive authorities to respect the professional and technical knowledge to give a certain "room to judge," is still an outstanding issue. Although Germany and Taiwan scholars to study this issue is already voluminous, ups and downs, but on domestic are only a handful of relevant, Diagram of the defects in language and the associated inconvenience, and the author of the study of this issue can only be limited to simple introduction.I first analyze people's desire for social order and stability, as well as to determine the future behavior of the expected starting point of departure from the legal certainty to the existence of the legal concept of undefined analysis of the causes of this article leads to several problems of proof.Followed by analysis of the legal concept of undefined and the application of the connotation of the process issues, is a controversial legal concept of undefined and administrative discretion, as well as the relationship between the nature of the legal concept of undefined analysis to illustrate the application of the legal concept of undefined is that the executive authorities in order to free the name of discretion, arbitrary and abuse of executive power, to avoid the breeding ground for judicial review, there was a need for its judicial review.Third, the writer from the People's Congress based on executive power and judicial power, the constitutional framework for a rational division of labor and administration according to law, respect for and protection of human rights point of view to prove the concept of undefined of application of the law, the executive power of judicial review by the Philosophy of Law basis.Fourth , a comparative analysis of the concept of extra-territorial laws of the undefined of the intensity of judicial review. Of Germany, the Taiwan Area and the common law legal concept of the undefined of acceptance of different theories, but does not affect the two issues in this basic attitude, whether it is Germany, Taiwan, the legal concept of the undefined of the intensity of judicial review strict implementation of a comprehensive review of specific areas or conferred on the executive authorities "determine the scope for" a limited review of the model, or common law to cover the administrative discretion being careful to distinguish between elements of discretion and discretion and be the legal consequences of different levels of judicial review, Despite the differences between the two, but there are similar.Fifth , the uncertain strength of the legal concept of judicial review of the outlook. In accordance with China's relevant provisions of existing laws and judicial review of the status quo, a brief outline of the undefined of China's judicial review of the legal concept of strength. That is, the principle of a comprehensive review, based on the actual situation and to give the executive authorities in the application of the legal concept of undefined to determine the room. However, the court should be in the process of judicial review places emphasis on maintaining a considerable degree of "self-restraint" and respect the legitimate exercise of executive power, to avoid the legal concept of undefined into the judicial review of a judge the power of self-interest pursued by the expansion of the maid.Construction of part of a theoretical conclusion reveals the tight system of judicial review of the current transition period and as a result of dramatic changes in China and the expansion of administrative functions of the contradiction between the demand, the uncertain legal concepts in the judicial review, the transformation of our society should be the current reality of the intensity of judicial review to be a reasonable adjustment.