Uncertain Legal Concept Of Judicial Review

Administration By Law and Judicial Review are the two main stanchions to the modern government by law. The former one suggests the guidelines of administrative behaviors, and the latter one supervises whether government departments break the rules. Nevertheless, there has existed a problem since the system of administrative litigation was developed. It is not certain whether all the administrative behaviors could be supervised thoroughly by courts or not. However, the answer is negative definitely because it is difficult to define the range. Traditionally, the theory of judgment believes the behaviors of administrative judgment should not be full reviewed by courts. Nonetheless, does there exist judgment as to the acknowledgement of fact requirement and the explains and judgments of law concepts during the application of law? Especially when the definitions of law are not clear but uncertain, how does a court make a judicial review?After the Second World War, the theory of judgment created by Germany was basically defined. However, the judgment only existed in legal consequence. As for the sections of legal fact and legal requirement, they used uncertain law concepts to replace the so-called judgment in the past. Having said that, it is significant but difficult for public law to adopt the uncertain definitions because it is not sure whether there exists full review of courts. There are many discussions as to this in public law in Germany. Nevertheless, there is little literature review related to this in China. Therefore, on accountant of the limitation of the language, this dissertation will discuss this topic from a basic field.This study will discuss the real meaning to choose this topic in the introduction, and then do some analysis systematically in four respective sections.The undefined legal concepts will be introduced in section one. Firstly, this dissertation will discuss the problems which exist in the adoption of theseuncertain concepts. Secondly, this research will analyze the reasons why these concepts exist. Confronting different situation, in order to avoid the unchangeable legal articles which do not apply to complex social facts, the uncertain law concepts of which extension is wide are adopted by law.The relationship between legal concepts and administrative judgment will be discussed in section two. Classical theory of judgment regards the difference from "free disecretion" to "statute disecretion" as the limit of behavior of administrative judgment which a lawyer censors. After the Second World War, there was some critic of this theory. In law facts and requirement," undefined legal concepts" are uded to take the place of "discretion",indicating this part is not discretion but cognition." As for judgment, it refers to the situation under certain fact requirement, discretion is the leeway about defined legal consequence under the defined fact requirement;thoug in the scope of undefined legal concepts' explainition or judgement, how to interpret and cognize the legal fact requirement or acting way will be concerned. Generally speaking, there are several suitable decisions in a judgment, and only the administrative departments have the right to choose, and courts can not change. On the contrary, as for the explanation of uncertain law concepts, courts may censor completely. However, there exists some academic debate about the relationship between law concepts and judgment.Some judicial review research on uncertain law concepts will be done in section three. In this part, this dissertation will take Germany and Taiwan as examples. They suggest the explanation and judgment of uncertain law concepts is a problem of epistemology, and there does not exist judgment. Generally it should be fully reviewed by court, but under the exceptional condition ,it's necessary to acknowledge the judgement leeway. But under the condition acknowledging the judgement leeway,what's the reasonable limitation of judicial power? As for this, some research such as so-called "judgement leeway" "the right of last judgement"and"requirement discretion"has been done in Germany and Taiwan, which is well worth using for reference.Based on Chinese situation, many real meanings of this research to administrative litigation in section four. According to the fifth item of administrative action law in China, "When an administrative action brought, the legality of the concret administrative act will be reviewed by the people courts", which is the base for our systemof admindtrative action judicial review. However, there is a disputed problem between "legal review" and "legal and fact review" as to administrative litigation, and it is not definitude in relevant law. After some analysis of Chinese situation, this dissertation believes it would be better to refer to Germany and Taiwan, and censor all the laws and facts thorough. Meanwhile, it could be more reasonable to define the range of review of courts according to the theory of judgement leeway.