The Change of Legal Order & Protection of Reliance Interest：Exploration and Reconstruction of the Legal Theory
Date Issued
2008
Date
2008
Author(s)
Chen, Chien-Yu
Abstract
The research attempts to provide a framework for analyzing and approaching the retroactive disputes in Taiwan. I argue that these problems can be solved by building up the clear transition policy and appropriate measures to deal with the systemic transition. My analysis proceeds by including four parts. he first part focuses on the meaning and essence of the “reliance” from the perspective of psychology in order to clarify the core of the Protection of Reliance Interests Doctrine. I argue that “Reliance” can only be analyzed in the decision-making process of rational individuals rather than the objective state of individual reliance on the state. By transformation of meaning from reliance to anticipation, the doctrine of the reliance interest protection can be understood as an institution to manage the uncertainties of legal changes rather than to eliminate the progressive transition. he second part focuses on the performance of tradition Reliance Base in the cases of retroactivity in recent years in Taiwan and discovers some ambiguity on the normative doctrine as well as the local context. In approaching the normative doctrine, this essay criticizes the tradition reasoning of the Protection of Reliance Interest Doctrine, which is called reliance base, and discovers the flaws in the set of operation.. The research material covers the legal practice, mainly Judicial Yuan Interpretations, and the legal theory. The third part remodels the Reliance Interest Protection Doctrine on the Anticipation Base, which emphasizes the function of the rational decision-making and cooperation of public/private sector to manage the uncertainty of legal change. In this way, the focus can be brought from ex-post to ex-ante perspective and, therefore, it is possible to draw a line between human right/government intervention and state discretion/judicial review. he fourth part tracks down some contextual problems hidden behind the doctrinal analysis in Taiwan locale and finds some dilemma of systemic transition. Although the disputes of systemic transition could take its shape as the retroactivity issues, the legal strategy must based on the unique value of restorative justice rather than the ordinary justice. In this part, I will provide some case study in Taiwan for example in support of building the neutral institution to handle the retroactive disputes during the systemic transition.
Subjects
Protection of Reliance Interest
Institutional Trust,
Retroactivity
Legal Change
Risk Anticipation
Political Trust
Restorative Justice
Independent Agency
Type
thesis
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