Study On The Legislative Application Of The Principle Of Reliance Protection

In modern social life,as the social division of labor becomes more and more specific,different social organizations begin to fulfill their different obligations based on the different social division of labor.In these social organizations,mutual reliance between team members and between members and organizations is a necessary way for each organization to improve itself against various kinds of risk.Especially since the risks themselves are unknown and undeterminable,mutual reliance is more significant and valuable.Reliance is not only the basis for stopping risks,but also greatly saving information costs and giving social individuals a sense of security.Therefore,reliance constitutes a foundation for private life and public life.Based on the important value of reliance in modern society,countries often confirm and provide reliance in the legislation through reasonable institutional design.Through these systems,the design maintains and consolidates the reliance between members of society,and promotes the stable development of society and economic exchanges.On this basis,the soul of reliance protection is abstracted,that is,the principle of reliance protection in the field of various departments of law.Although involving extremely extensive and complex content,the principle of reliance protection in different fields is consistent in nature.In particular,the specific institutional manifestation of the principle of reliance protection in the field of law in all sectors is based on the same or substantially the same common goal of providing legal protection to the reasonable reliance of the parties.Based on this,we can define the principle of reliance protection as the subject of legal relationship based on the general cognition of rational people.If reasonable reliance on certain legal facts or legal acts(whether the legal facts or legal acts are in public law relations or private law relations),the law should provide due protection to the reasonable trust of the parties.The principle of reliance protection in public law is based on the principle of law and stability and the principle of guarantee of basic rights,which not only enhances the legal hierarchy of the principle itself but also makes it better applicable in practice.As far as the value of the principle is concerned,it mainly includes two aspects.One is the value of life guided by the system itself and the other is the value brought about by the objective of reliance protection.Specifically,the value of this principle is mainly reflected in the following four aspects:Firstly,in the operation of the system to safeguard the public interest and take into account private interests,the substantive justice is truly realized.Secondly,through the maintenance of the administrative act of the administrative subject to achieve the continuity and stability of administrative actions to reflect the value of social order.Thirdly,the principle of reliance protection advocates that public authorities should emphasize integrity,which not only reduces the losses caused to the relatives,but also reduces the cost that the state may pay for the relief of relatives.The reduction of cost input and the increase of the output of administrative behavior will of course increase administrative efficiency.Finally,the principle of reliance protection corrects the objective disparity in the contrast between the government and the relative human beings through the necessary restrictions on the power of the government.The reliance interests of the administrative counterparts are guaranteed and the effect of substantive equality is produced.The principle of reliance protection can be applied to legislation,while different countries have certain differences in specific ways.In Germany,the principle of reliance protection has been widely recognized as an important principle with a constitutional hierarchy.German scholars believe that the authority based on laws and regulations should be regarded as the basis of the people' s trustworthiness and adhere to the principle that the law does not go back to the past.The German Federal Constitutional Court has also gradually developed a stable approach based on the theory of reliance protection.That is to say,except for the exceptions,the principle that the law goes back to the past is permissible,and it does not really go back to the problem of not being traced back and prohibited in the past.France' s legal norms have been very stable for a long time,so of course there will be no strong demand for reliance on protection as in German law.Instead,by means of vested rights to regulate the legislative activities of the legislature,based on the theory of vested rights,and the relationship between the retroactivity of the law and the“vested power”,France has formed two complementary principles:"The new law should not be retroactive;the new law must not affect the vested rights." In the early days of the United States,when discussing the issue of whether legislation could be traced back to the past,the theory of vested rights was mainly used.However,more and more scholars began to explore the retroactivity of law with the reliance interest and legal expectations.In practice,a set of profit and loss trade-offs was developed from the Chenery principle(the Chenery II case)to measure the damage caused by violation of legal norms and the damage caused to the people by retroactive legislation.If the former is more damaging,such legislation allows tracing back,but if the latter is more damaging,it is not allowed to trace back.Reliance protection is often referred to as“legitimate expectation”in Britain law and it is possible to retrospectively examine whether legislation can be retroactive in the past,and gradually form a more unified understanding in the Coughlan case.The principle of reliance protection is of great significance in the application of legislation.The principle of reliance protection emphasizes that government should realize the protection of people' s reliant interests through reasonable means,and avoid the public' s loss caused by changes of the law.From a.nother perspective,the principle of reliance protection also requires the national legislation to avoid adversely affecting people' s reliance interests by frequent changes in national laws,to ensure the stability of the law,and to regulate the exercise of state legislative power.At the same time,in the field of making legislation gaps,the principle of reliance protection can serve to supplement the loopholes in the law.In addition,applying the principle of reliance protection to legislation not only solves the problem of how the new law and old law cooperates,but also applies laws and regulations to better balance the relationship between public interest and reliance interest.More importantly,it provides a path for how to protect the interests of the parties after the reliance of the interests of the parties is damaged.It provides theoretical support a.nd concrete practice for the legislature to better protect the reliance interests of the parties in the legislation.As a basic principle with a constitutional level,when the principle of reliance protection is applied to the legislative field,abstract legal norms will become the basis of trust.If the people act on the basis of reliance in the old legal norms,their reliance interests should be protected by law.when the legislation is changed,the new law should be restricted to apply ingto future cases instead of applying to cases occurred before,that is,when legislators are required to change the legal norms,they must adhere to the principle of non-retroactivity.From the point of view of the people' s reliance interests,adhering to the principle that the law does not go back to the past is undoubtedly the most thorough protection of the people' s reliance interests and can maximize the interests of the people.Modern countries generally adhere to the principle that the law does not go back to the past but they also stipulates many exceptions,which means the principle that the law does not go back to the past is not absolute.The realization of the principle and the exceptions that are the proper meanings in the principle constitute the complete connotation of the law.The combination of such principles and exceptions achieves the value orientation of adhering to the principle that the law does not go back to the past and at the same time overcoming many shortcomings that are not retroactive in the past.The retrospective capability of the new law mainly includes:legislation that is beneficial to the parties;procedural law;new laws that repair defects or loopholes in old laws;emergency legislation;legal interpretation.Generally speaking,legislators should consider various factors when considering the feasibility of retroactive laws and regulations and make final evaluation results based on this.These factors include whether the new law has adversely affected individuals,the basis of trust of the parties,the performance of trust,whether the interests of the parties are worth protecting,the legal status that the parties have obtained and the measurement of public interest.When the legislator allows the legislation to go back to the past and it will affect the reasonable reliance interests of the parties,the state should compensate the loss.The amount of compensation should be based on the relative person' s degree of trust in the old law while it should be equivalent to the scope of the loss.In addition to the two extreme solutions that the new law does not trace back to the past or the new law can trace back to the past,the legislators could complete a smooth transition from the old law to the new law by stipulating a“transition clauses”in the new law to clarify how to choose and apply the old and new laws during the transition of the old and new laws.Due to the different legislative content and the complexity of the transition between the old and new laws,the legislative methods of transitional provisions in different nations are also different.Generally speaking,the transition clause mainly has three legislative methods:by formulating the "by-laws" in the legislation which is the most commonly used method;by formulating legal amendments,that is,when the law is amended,the equivalent provisions of the law are also dealt with at the same time;the transitional provisions are regulated by means of enactment.The specific types of transitional provisions in legislative practice mainly include:limiting the scope of a.pplicable old legal norms in terms of time or type of case.After the new law comes into effect,the new law provisions sha.ll be applied and at the same time,the statutory methods shall be adopted to mitigate or eliminate the adverse effects of the new law order on the interests of the parties.The content of the new legal norms has been gradually implemented,enabling people to gradually adapt to the content of the new law.The new and old law is applied in sections;the implementation of the new law is postponed,etc.Although there are a lot of transitional provisions in the current legislation of our country,however,due to the relative lack of legislative experience and the lag of theoretical research,there are still a lot of problems in the transitional provisions of China' s legislation in practice.With the emphasis on the quality and refinement of legislation,China' s legislature should attach great importance to the formulation of transitional provisions,by setting up reasonable transitional clauses,we can solve the problem of connecting the new and old laws scientifically,and avoid the waste of legislative resources and the confusion of law application.