Consistency and Legitimate Expectations -Based on the Perspectives of Government Action-
Date Issued
2010
Date
2010
Author(s)
Chen, Wei-ren
Abstract
The principle of legitimate expectations is going more crucial in modern society because of the incompatibility between the people’s prediction of governmental action in order to arrange their life and the development of policy which essentially seems not to be stable forever. The aim of the research is to demonstrate Taiwan judicial review of legitimate expectations went astray among specific cases because of the failure to construct a rational and stable pattern to protect legitimate expectations. By pointing out the mistakes of “Administrative Act Revocation Approach” utilized in Interpretation No. 525, this article suggests another model, that is, the principle of proportionality with support of Retroactivity Pattern, for rule-changing review.
In details, there are two suggested models in order to improve the predictability and to strengthen reasonable reliance on legislative.
First, categorization according to different nature of the regulation is necessary. In public law area, in which the relationship is public-private, criminal law cannot be with retroactive effect, which is banned by ex post facto. In addition, laws which are not criminal but have punishment cannot be permitted with retroactive effect, unless the government proves that the regulated party deliberately took advantage of the loophole of law so as to violate “the law”, which did not exist but should have been existent. Besides, if the government makes law with retroactivity on purpose of the compelling interest, the compensation should be appropriated. Finally, laws which are neither criminal nor punishment, such as entitlements and subsidies, can have retroactive or prospective effect according to the facility for policy-making. Since these issues belong to policy concern, political responsibility should also be considered as a checking mechanism.
As regards the civil code, thinking that the relationship is private-private, Congress can form the novel relationship if it will. However, the infringement of vested rights should pass the judicial scrutiny, and the political responsibility should be taken even though the legislative is undergoing reform of society.
Furthermore, the legislative choice of translation clause and remedy should be coped with more carefulness. As a matter of policy, Congress has taken varying approaches when establishing the effective dates of statutes. All approaches are in accordance with the purpose of Congress. For instance, when Congress in the United States adopts statutes changing the federal tax law, it has often adopted one or another of the following effective dates: January 1 of the year of enactment; the date the proposal was initially announced; the date on which legislative committees tentatively agreed on the measure; January 1 of the year following the year of enactment; a multi-year phase-in of the change; "grandfather" rules, exempting items of income and expense arising from transactions entered into before the date of enactment. However, as indicated by Interpretation No. 668, "grandfather" provision is apparently not the best solution for translation period for not only the failure to achieve reform task but its disturbance to the stability of law if litigations are raised after several years of the amendment.
In the arena of Executive, the revocation or abolishment of administrative act can be dealt with Administrative Act Revocation Approach, whereas the alteration of regulations and interpretations is a different issue. Regulations, which are authorized by law and as supplement to law, and interpretations, which give the definition of what law is, are both ruling in a general way. Hence, the constitutionality of regulations and interpretations should be decided in an abstract way, i.e., as the facility of judicial review, the principle of proportionality with support of Retroactivity Pattern is a better option. Moreover, with a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Therefore, judicial review must be lenient and deferent to agencies in fast-change regulation context if we still hope that agencies can respond immediately and act themselves flexibly. Besides, it is possible that the harsher the courts ask, the less standards and information agencies will publicize because they incline to circumvent the criticisms that they disobey their own rules.
As regards Judicial Review and Other Remedies, when the Honorable Justices use whatever approaches for legal change review, eventually they encounter the difficulty stemming from the balancing test, which is dealt under the traditional approach, the principle of proportionality. Indeed, the court complicated the issues raised from legitimate expectations. The modified principle of proportionality, by which the court will raise or lower the standard of review according to different given circumstances, is enough to legal change review. By virtue of applying appropriate standard to review, the categorized object of legislative and the flexibility of agency action can be maintained.
Not all regulations must be reviewed before Constitutional Court. Even though laws and regulations are affirmed by the Honorable Justices, it does not follow that the laws and regulations are constitutional in application. As long as the application of retroactive rules is unfair and unreasonable in specific cases, the district and appeal courts remain their power to intervene and relieve for keeping legitimate expectations safe. On the other hand, the jurisprudence must realize the judicial condemnation is not the only way to defend legitimate expectations, resorting vote and political responsibility is also a possible approach of check and balance. Finally, public officials engaged in the development of policy should still take the responsibility for their decisions even though the legal evolution at issue passes the judicial scrutiny.
Subjects
legitimate expectations
reliance
retroactivity
legal change
Interpretation No. 525
SDGs
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