Comparative Study On "The Duty To Give Reasons" For Administrative Decision

Given the recent scrutiny of the development of administrative procedural law, a great deal of attention is being paid to the study of "the duty to give reasons" for administrative decisions, which is integral to the administrative publicity, transparency and democracy. Due to the importance of the issue, analysis on this topic is of both theoretical and practical importance. This thesis consists of three chapters, which separately study the duty to give reasons for administrative decision in the two legal systems countries through a comparative methodology.Chapter One focuses on the basis of the duty to give reasons, namely, why is it a necessary part of administrative law and what are its roots. From a theoretical stand-point, the duty to give reasons in countries with a "common law" legal system, originates from the "natural justice principle" and "due procedural principle"; whereas in countries with a "civil law" style legal system, the duty to give reasons originates from the theory of the governance by laws and administrative rule of law. From the statutory stand-point, it articulates that giving reasons for administrative decisions is one part of a larger administrative procedure, which gradually falls under the judicial review and states in the administrative procedural law.Chapter Two emphasizes the content and the scope of giving reasons for administrative decisions. Essentially, these must include finding of facts and application of statutory laws. If the decision involved a need for discretion, the reasons for the final decision should demonstrate that whether or not and to what level the discretion was used and how this may have affected the final outcome. The necessity of giving reasons may lead to a conflict between the protection of people's right and the promotion of administrative efficiency. Therefore, whether to use the method of enumeration, generalization or exclusion in stating the duty to give reasons in statutory, concerns with the reality of the development of administrative procedural law.Chapter Three analyzes the possible outcomes of breaches of the duty to give reasons. A failure to give adequate reasons may render the decision invalid. Different opinions exist between legal experts and judges that whether these defects in administrative legal procedure can be omitted, set aside as erroneous in law or nullified and voided, and whether these defects can be fixed. Our practice is to set aside decision that does not satisfy the duty to give reasons, with the idea that they may later be remedied.Through a comparative methodology, this thesis consists of recent materials with a forward-looking content and may use for reference.