| In contemporary society,governments are commonly faced with credibility crisis. The occurrence of the crisis does not necessarily result from public doubts on the validity or rationality of the policies.The key reason behind the credibility crisis is the randomness of the administrative decisions and arbitrariness of change by the administrative authority.The construction of an honest government with integrity has been considered an essential condition by many countries,including China,for the healthy and sustainable development of a society. This is not only a desire,but an actual practice that has a foundation on the systems,among which the legal system is undoubtedly the most important one.The legal system supporting the construction of an honest government manifests itself mainly as the system of public law,which achieves its function of construction and safeguard through specific rules and principles, with trust protection (Vertrauensschutz) being an important constituency.System setup and theoretical study concerning the principle of trust protection can be found both domestically and internationally. A comprehensive survey over the legislative precedents in various countries indicates that the system setup is mainly achieved in the law of administrative procedure,with regulations restricting the ability of the administrative authority to withdraw or cancel administrative actions so as to restrain the power of the administrative authority; with regulations to maintain the continuous validity of the administrative actions so as to protect the legal interest of the private party;with regulations to emphasize the counter balance of private interest by public interest so as to enforce authoritative legal interest;and with a system of reasonable administrative compensation to realize the characteristics of the right standard of modern society.With respect to theoretical study,there are abundance of achievements by Chinese and foreign scholars concerning this subject,mostly focusing on interpretation of the system concept and assessment of system operation. The works are comprehensive and in-depth.The principle of trust protection is a rule of adjustment,and contains elements of ethics.The incorporation of ethics into law has been an ancient tradition,although each legal standard that contains ethical orientation has its unique cultural background and societal foundation.The principle of trust protection is no exception.It will be very interesting to explore the mechanism of the origin of the principle of trust protection,and inquire into the environmental and ideological condition from the prospective of jurisprudence and sociology of law.This thesis carries out the research in five areas:1) the legal cultural tradition that gave birth to the principle of trust protection,2) the jurisprudential foundation of the principle of trust protection,3) the social political conditions in which the principle of trust protection originated,4) the value analysis of the principle of trust protection,and 5) the localization and system construction of the principle of trust protection in China.Chapter 1 discusses the legal cultural background on which the principle of trust protection originated.The creation of any social system is always associated with the preparation at the level of societal ideology,which gradually becomes culture after condensation and abstraction. Culture is a generic concept.As an enormous carrier, culture reflects experiences in every levels of a society,and can be used to interpret various social phenomena,even create a social panorama.For the western countries,the cultural phenomenon that has most profound influence on the society has to be Christianity-based religions.A unique Christian ethics has developed over the long history of Christianity. Inside such ethics,the formalistic equality and intrinsic contract spirit are most closely related to the object of this study.The fear of god rooted in the religion gave birth to the faith culture of the societal ideology.The barrier to its assessment and operation became much lower when the culture turned into a social system.The morality of the principle of trust protection is consistent with the spirit of Christianity,thus the practicality of its social foundation is evidential.The contract civilization in the western society has a long history,earlier than Maine's "Any transformation of a society is ultimately a revolution from status to contract",and independent of the persuasiveness of Rousseau's Du Contrat Social.The subjects of contracts include almost all the subjects in a society,from natural person,to economic person, and to the government."A contract must be honored" has become essential for the contract civilization to continue.When the administrative behavior, especially the beneficial decision administrative behavior is considered an administrative promise,the contract civilization has demonstrated its great power of restriction and protection.The concept of contract civilization has undoubtedly become the social pillar of the principle of trust protection.Among all the human sentiments,especially under the circumstance when there are interactive relationships between the subjects of the society,the culture factors that maintain the positive relation is mainly trust or credibility,which flows between every subjects of social relationship.To the administrative power,trust entails authority and efficiency. Studies on culture of trust can help us make the judgment on the value of the principle of trust protection.The positive effect of trust is based on the expression of mutual intention and guarantee of mutual behavior.The risk of trust always exists;therefore there must be a mechanism to counterbalance the risk,particularly when there is an inequality between the two parties involved in the trust.Protection by system is more important to the weaker party.The principle of trust protection provides a shelter for the private party to mitigate the risk of trust.Chapter 2 describes the jurisprudential foundation and system environment of the principle of trust protection.The principle of trust protection does not have a long history as a part of the administrative law.The first application of the principle could be found in Germany 50 years ago.There were sufficient jurisprudential preparation and system support behind the important principles of administrative law that originated several years after the end of World War II.The so-called jurisprudential preparation refers to the revival of natural law;whereas system preparation refers to the sustained perseverance of legal certainty and the long heritage of honesty and credibility principle.WWII brought not only the shame of destructing human civilization and conscience,but also reflections on the basis of reason. Such reflections were multi-perspective and multi-layers, and in the field of law, manifested itself as the revival of natural law.Before WWII, positivistic legal theory had been very popular in German jurisprudence,which rigorously followed the doctrine of legal tradition and system,even if the law that they followed had lost its ground of justice,such that the law had become an excuse for the injustice behaviors during the war.The war forced a group of legal scholars represented by Gustav Radbruch to rethink the value of law.They proposed the doctrine of justice being the utmost purpose of law,and returned the spirit of law to the fundamental category.The generation of a number of theoretical achievements became the symbol of the revival of natural law.In the meantime,the revival of natural law gave birth to a variety of new legal principles and legal systems,represented by the principle of trust protection with its defense of the justice of law and dignity of rights.The principle of rule by law in Germany and many other western countries comprises the doctrine of legal certainty,which emphasizes on the stability and predictability of law to protect the authority of law,thus guaranteeing the continuous realization of citizens'rights.The legal certainty and non-retroactivity of the law together have become the fundamental legal principle that reflects the intrinsic characteristics and external authority of the law.The operationability of fundamental principles often requires specialization by principles of law department.The principle of legal certainty manifests itself in the area of administrative law as the principle of trust protection.The smooth implementation of any new legal principles and rules should be accompanied by relatively mature techniques,which relies on the cumulating of experience.The establishment from a individual precedent and subsequent systemization of the principle of trust protection is related to the earlier practice of other relevant systems. Among principles of the other law department, the one that provides the most practical support to the principle of trust protection is the principle of good faith in civil law.The two principles share common intrinsic doctrine,i.e.,promotion of morality and protection of good will;and have many comparable rules of application. The principle of good faith as an age-old private law principle has indeed provided a mature and translatable experience for the principle of trust protection, a public law principle.Chapter 3 reveals the background conditions of the principle of trust protection based on descriptions on the social conditions,political prerequisites and administrative ethics concerning the origin of the principle of trust protection.The principle of trust protection did not parachute onto Germany, its birth place.Instead,there was an important practical basis.From the onset of the 20th century to the 1940's,Western Europe had been constantly in turmoil.On one hand,the dramatic events such as the World Wars and the Great Depression destroyed the political and economical orders and even ideologies,which the capitalists had been working diligently to establish.On the other hand,those events provided opportunities for the creation of new systems and new principles.One example is German society.Its administrative system started the transformation in the first half of the 20th century,from a controlling, police administration that emphasized on order,to a service,provider administration that emphasized on welfare.The improvement of living condition of the society became the important target of the government, practically creating the condition for the birth of public law system, with the principle of trust protection being the representation and the rights being the system standard.For the government,honesty and responsibility became the two fundamental elements of its administrative ethics.In return,the principle of trust protection united the desires from both elements very well,and became the best illustration of the contemporary rule of administrative law.Chapter 4 specifies the value of law,the important research object of legal culture,dissects the value of the principle of trust protection, and tries to prove the justice of this public law principle.As the top value of law, justice, with its different manifestations,determines the significance of law.Justice has both intrinsic and extrinsic aspects that are often in conflict.A lasting and obvious conflict happens between the intrinsic justice and formalistic justice.From some perspectives,the justice achieved by law is procedural,with emphasis on formality;whereas the justice pursued by the society is mainly intrinsic,with emphasis on results.Ideally the two should be integrated,i.e.,to achieve intrinsic justice on the basis of formalistic justice.However,the incomplete match between the two may happen anytime.The principle of trust protection resolves the realization of the expected rights of the private party through procedural approval,scientifically and reasonably,thus integrates the formalistic justice and intrinsic justice to the greatest extent.Among the values of law,freedom bears more romantic flavor,whereas freedom in the scope of principle of trust protection is to guarantee private party and societal public interest more freedom through legally limiting the freedom of administrative authority,thus demonstrates the true connotation of freedom.Equality is the soul of democracy.Equality and democracy can actually be accomplished by combining the two into a system.The principle of trust protection imposes government the obligation to keep promises,whereas to the citizens similar legal obligation has always existed in the system.Under the traditional model of administration,the relationship between administrative authority and private party is mainly one-directional,of command and obedience.The principle of trust protection,however,reflects the private party's negotiation on administrative processes and results,i.e.,its inquiry,with yardstick of legal rights,into the arbitrary cancellation and withdraw of administrative decision by the administrative authority.Even if its right has to be sacrificed for legitimate reasons,on the basis of fair negotiation it is allowed for the private party to bear minimum loss and seek appropriate compensation.Under any social circumstance,the fundamental value of the law is to maintain basic social order. It has become less and less likely to establish an order through oppression of power in a society ruled by law.In the administrative arena,particularly beneficial decision administrative arena,more often the maintenance of order requires the administrative subject honestly preserve the continuous validity of the administrative decisions,and guarantee the expected realization of object person's trust interest.The administrative purpose is achieved,the trust interest is realized,and the administrative order is ultimately accomplished by the administrative authority's willingness to keep promises and respond proactively to the private party.Different from the past when the cost is not taken into account in the process of achieving administrative purpose,modern society is a society emphasizing on efficiency,whereas administrative efficiency is an important assessment criterion of administrative purpose.One of the conditions to accomplish efficiency is the smooth,hurdleless execution of administrative decisions.Obviously,contradicting behavior by the administrative authority would result in the inability for the parties of the legal relation to predict actions of the other party,and the inability to evaluate its own situation,entailing the occurrence of uneconomical,inefficient situations.What the principle of trust protection accomplishes in terms of administrative efficiency,is that because of the maintenance of the consistency and continuous validity of the administrative behavior,the objective person is able to act towards a predetermined target,and help administrative authority accomplish the administrative purpose while realizing its self interest.Chapter 5 discuss the attempts on system construction of the principle of trust protection.This is still a fairly enormous topic.To mirror the universe from the tiny,this thesis carries out analysis on three specific questions in three sections.The first section looks for appropriate system language and practical lessons through system comparison. Primarily based on the examples of system and operation of the principle of trust protection in Germany,the characteristics and practice of Anglo-American legitimate expectation,the principle of trust protection manifested in the regulations in EU laws and relevant legal practice in EU courts,and regulations and judicial precedents concerning the principle of trust protection in Taiwan,China,the manifestation and operation of the relevant system is analyzed systematically and thoroughly in order to obtain lessons for the system construction.Because the subject of the thesis accentuates on the study on the level of legal culture,the analysis of the culture of Chinese public power and positioning of government by the society have become the questions to be addressed in section two of this chapter.The analysis uses the manifestation of state patriarchism in traditional Chinese society and the impact of "Saint Assumption" on the relationship between government and society as a starting point,combines the rational positioning of government under the background of market economy,studies the social cultural environment for the implementation of the principle of trust protection in China,eliminates potential negative elements, and clears barriers to the operation of the system.The third section concerns the construction of the specific system.It starts with a positivistic analysis,using various typical cases related to the principle of trust protection to investigate the application of this principle in practical matters,so as to assess the reasonable manifestation of the system.During the establishment and optimization of the principle of trust protection, an inevitable topic is on some specific designs of the system,such as key components of trust interest to be protected by the principle of trust protection,outlining of public interest as exception of the principle of trust protection,and the pre-condition and procedure of initiating administrative compensation after the principle of trust protection is relinquished.In today's China,there is still space for them to be optimized and expanded on the system level.Therefore,the last section of this chapter will extend the study around the above practical problems, and propose thoughts on the system construction based on previous achievements.The purpose for studying a problem is to solve the problem.The reason for this thesis'inquiry into the cultural prerequisites and system background of the origin of the principle of trust protection,is based on the concerns on the absence, to various extent, of spirit of equality,spirit of contract,spirit of honesty and credibility,which are necessary to the construction and implementation of the principle of trust protection,in the environment of public power of our country.Through analysis on materials and study of experiences I hope to find reasonable positioning of the principle of trust protection in the legal system of our country,and accomplish its deserved value in practice.
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