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The Interest Balancing Rule In American Judicial Review

Posted on:2018-11-24Degree:MasterType:Thesis
Country:ChinaCandidate:M H JiangFull Text:PDF
GTID:2346330515492560Subject:Constitution and Administrative Law
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In the process of interest balancing,the court should choose one of the most important interest through reasonable comparison and analysis of competing interests,and reduce the harm to other interests at the same time.As an important balancing test,although it has rarely been used in the practice of administrative adjudication and trial in China,interest balancing has become widespread in some other countries with developed judicial review system.Thus,this article aims at studying how the judges in United States use interest balancing in the practice of adjudication and law explanation,and therefore provides some reference on how to analyze and handle competing interests.The first part starts from problems,and provides the current law about interest balancing and an overview of scholars' opinion.Facing the deep conflicts in current China,the law is rather abstract,and we lack judicial experience.The United States courts,as the world's most powerful constitutional courts,have embraced a mature procedure for balancing over many precedents.Therefore,from the standpoint of comparative study,it's important to use the method of interest balancing in public law by learning from the United States,and thus solving the existing problem in our country.The second part analyses some judicial review cases.According to the different interests in each case,this article divides these cases to three categories:cases concerning conflicts between the public interests and the public interests,cases concerning conflicts between the individual interests and the individual interests,cases concerning conflicts between the public interests and the individual interests.It could be found that the method of interest balancing is omnipresent,and the court has summarized a stable analytical procedure.In general,the court first considers the rights and liberty that the constitutional law protects in balancing;the court should balance all the conflicts based on the different situations of each case to reach individual justice;there must a reasonable and legitimate reason to sacrifice some interests and justify the choice of the court.The third part summarize some of the commons rules that the courts use when dealing with competing interests based on the chosen cases,including proportionality analysis and interest balancing.As the a judicial review standard,proportionality can not only balance the legislative power,but can also balance the administrative power.The rule of interest balancing is a further development of proportionality,it seeks to maximize all the interest to reach justice.The American courts also focus on the protection of private basic rights,which can avoid the harm from legislation and administration.Furthermore,the courts would consider the time background,the identity of litigious parties and some other factors,besides from the related conflicts.So the method of interest balancing will be tailored to suit to time and local circumstances.The American experience will enlighten the Chinese court on how to solve conflict of interests in administrative adjudication.
Keywords/Search Tags:interest balancing, conflict of interests, proportionality
PDF Full Text Request
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