On The Principle Of Protection Of Reliability In Constitution

The government goes before achieving a credit society. As the policy maker, public affaire manager and social life organizer, the government posses resources, information, authority and other advantages that individuals cannot have. So individuals must rely on government's behaviors and accordingly arrange their own lives. A stable social order is maintained consequently. In now a time when the government interferes in social life widespreadly, maintaining such a trust is particularly important. On the other hand, as changes in social life are inevitable, government's behaviors will need to change for various reasons. At this time, for those who trust government's behaviors and arrange their lives accordingly, the government should provide protection of certain means and extent, witch is the request of a legal state and a responsible government, and also the need of construction of credit government and safeguard for authority of the government. Reflected in law appears the Principle of Protection of Reliability in public law. The academic field usually researches the Principle of Protection of Reliability from the angle of administrative law, and most countries only recognize the Principle of Protection of Reliability to be a basic principle of administrative law. The author holds that the Principle of Protection of Reliability should be a constitutional principle, having a restraint on all kinds of government's behaviors including legislative behaviors, administrative behaviors and judicial behaviors. In this way people's legitimate rights and interests can get better protection. In a country that lacks the tradition of rule of law and integrity of the government like our country, making the Principle of Protection of Reliability a constitutional principle has grate significance.The first chapter introduces the origin and development of the Principle of Protection of Reliability. The Principle of Protection of Reliability stemmed from Germany in 1950's, and was only applicable to administrative behaviors of award at the beginning. Being quoted unceasingly by German Federal Constitutional Court after that, this principle became a constitutional principle. The Principle of Protection of Reliability was also introduced to other countries and areas. Up to now, it has been accepted as an administrative principle by France, Japan, Korea and Taiwan, etc. Although there is no such concept as the Principle of Protection of Reliability in Anglo-American Law System, the Principle of Intimate Expectation in England set by British courts through legal precedents and procedural rules in the USA such as the Principle of Justifiable Procedure provide protection to people for their trust on government's behaviors just like the Principle of Protection of Reliability in Continental Law System does.The second chapter discusses the fundamental theory of the Principle of Protection of Reliability. Regarding this, scholars haven't reached an agreement yet. Among all the theories, the theory of the Principle of Honesty and Credibility, the theory of Security of Law, the theory of Country under the Rule of Law and the theory of Protection of Fundamental Rights are representative ones. The theory of the Principle of Honesty and Credibility holds that the Principle of Protection of Reliability originates from the Principle of Honesty and Credibility, specifically including the theory of Analogy of Private Law, the theory of General Thought of Law and the theory of Essence of Law. The theory of Security of Law holds that the Principle of Protection of Reliability deduces from the Principle of Security of Law. The theory of Country under the Rule of Law holds that the Principle of Protection of Reliability is one of the requests of Country under the Rule of Law in the material meaning. The theory of Protection of Fundamental Rights holds that the Principle of Protection of Reliability matches the need of protection of people's fundamental rights, which is divided into the theory of Property Right and the theory of Free Right according to the kind of right being protected. On analyzing these theories, the author thinks that the fundamental theory of the Principle of Protection of Reliability lies in Protection of Fundamental Rights (Free Right) and the Presumptive Rightfulness of government's behaviors and the Credibility of the government from the system angle.The third chapter expounds substantial safeguard for the realism of the Principle of Protection of Reliability, which means under what conditions and how the Principle of Protection of Reliability should play its role. The composed elements of the Principle of Protection of Reliability include reliance foundation, reliance performance and reliance worthy of protection. The author divides reliance foundation into specific government's behaviors and abstract government's behaviors, and holds that all government's behaviors, including behaviors of liability and behaviors of no compulsory belong to reliance foundation. Specifically, when the reliance foundation is a specific government's behavior, the Principle of Protection of Reliability requires that the change of the behavior be restrained or compensation for damage been available when the behavior has to change for public interest, and when the reliance foundation is an abstract government's behavior, the principle requires that the retroactivity of the new law be restricted, remedy measures be taken or compensation for damage been available when the new law has to have retroactive effect for public interest.The forth chapter discusses procedural safeguard for the realism of the Principle of Protection of Reliability, which means what procedures should be provided to support the realism of the Principle of Protection of Reliability. It is a common sense that no procedures, no substantive rights, no matter how perfect the substantive rights are stipulated. The author divides the procedures for the realism of the Principle of Protection of Reliability into action procedures and remedy procedures. The former refers to procedures of change of government's behaviors, mainly including Notice, Reason-giving and Right-informing, Hearing and Time Limit. The latter refers to what channels of institutionalization people can take when their reliance interest is damaged, including administrative remedy and judicial remedy. Both of the two channels have advantages and inferiorities, and people should have the right to choose the channel beneficial to themselves.The fifth chapter analyzes the ways adopted to provide protection for reliance interest. When there is reliance and the reliance is legitimate, the government should provide certain ways of protection such as unchanging the original government's behaviors, compensating for damage or taking remedy measures when it wants to make a change to the reliance foundation to realize the Principle of Protection of Reliability. Regarding to the choice of specific way, interest balancing plays an important role. After comparing the interests, when private interest is more important than public interest which is exactly the aim of the change of government's behaviors, continuity protection should be taken; otherwise compensation protection should be taken. In the situation of the new law applied to separable facts that occur before the new law comes into effect and continue till it becomes effective, where neither continuity protection nor compensation protection is proper to take, remedy measures such as transitional provisions or measures of legalization should be taken.In the conclusion part, the author points out that as a new thing in our country's theories and practices, the Principle of Protection of Reliability is far from perfect. When constructing our country's system of protection of reliability, it is essential that we take the Principle of Protection of Reliability in constitution and perfect guarantee mechanisms of the principle as our aim, proceed in an orderly way based on our legal and national situations, instead of hoping to reach the goal in one step, and finally realize the ultimate aim of the Principle of Protection of Reliability of restraining government's power and safeguarding people's rights.