Fundamental Right Protection Under The Legal Reservation Doctrine

The Legal Reservation Doctrine (called"doctrine") stemmed from the German administrative theory, which initially established to limit and regulate the administrative powers. After enriched by the practice and theory, the contents of doctrine are beyond the theory that the unauthorized administrative powers is illegal that it also focus differently on constitutional aspect as well as administrative aspect. The meaning of legal reservation doctrine under constitution emphasizes on the separation of rights, which, under the administrative law, put emphasis on the authorization of law. The significance to differentiate the doctrine under constitution and administrative law is: due to our administration and justice cannot be applied directly to constitution. Thus, the legal reservation doctrine under constitution can only reflect the separation of powers, without relating to its meaning under administrative law. It is essential to use the bisection methods to discuss the doctrine under our legal system.Comparing to administration and justice, the legislation is the key process in acquiring fundamental rights. Especially, when the scope to use the justice is limited and the administrative rights are greatly powerful, it is more than necessary to explicit the essential role of laws in achieving the fundamental rights. And as to the limitation to fundamental rights, it must establish law as formal requirement to realize the internal requirement of the popular sovereignty. In comparison of legal reservation doctrine, constitutional reservation is to provide the limitation of fundamental rights in constitution regarding its contents and procedure, that is, even the law is not allowed to conflict with it, which act as a limitation to the doctrine. By study the relevant regulation regarding legal reservation doctrine in our Constitution and Legislation Law, we can find that they have incongruous scope regarding the principle. Under the practical aspect, the application of doctrine is far more beyond satisfaction. Typically, as to the collection over taxation and non-private properties, it shall apply the legal reservation doctrine to enact the matters which in practice is subject to the authorization of administrative law. The reason causing the inability to implement the doctrine are: due to the power structure established under the People's Congress system, the Congress's legislation power has superiority over administrative power and thus the doctrine cannot add any advantage to congress's legislation power; as the legislation institutions, congress and its standing committee will result in slackened legislation due to its meetings term and the legislative procedure, resulting in the expansion of power for administrative legislation; the lack of judicial power and legislation responsibility are also the reasons.In order to develop the protective function of legal reservation doctrine regarding the fundamental rights, we can explicit the different scopes of constitutional reservation and legal reservation. To organize the special authorized legislation of congress and standing committee promptly and establish relevant laws will be beneficial to implement the doctrine. And it is the fundamental premises to establish the legal authority, and regulate the administrative legislation by explicating the scope of authorized legislation. There are also certain obstacles to implement the doctrine in the judicial practice, except some substantive regulations representing the doctrine to act as the basis for trial; it is also a method to use the doctrine as one of the administrative principle to protect the fundamental rights.