THE REVIEW OF NON-DELEGATION DOCTRINE─U.S. EXPERIENCE AS AN EXAMPLE

• Main Authors: CHEN, WEI-CHUN, 陳威駿
• Other Authors: KAO, CHICH-HENG
• Format: Others
• Language: zh-TW
• Published: 2006
• Online Access: http://ndltd.ncl.edu.tw/handle/93748585961261623242

碩士 === 國立臺北大學 === 法學系 === 94 === Judging from that Constitutional Court Reporter strictly require all delegation articles and ordinances must be observe The Principle of the Explicit Delegation(“Intelligible Principle”), the aim of this thesis then is exactly to research the evaluation standard of the specific authorization, and to check if the administrative bodies does re-issue a specifically authorized delegation articles and ordinances after Constitutional Court made explanation to show any violation record left by legislative bodies and administrative bodies . The author hopes that by doing so, readers can understand how can lawmakers authorize delegation articles and ordinances to match The Principle of the Explicit Delegation(Intelligible Principle). How should one maintain the check and balance principle between the legislature and the administration when the former is increasingly delegating its legislative power to the latter in more and more complicated public policies? Recent debate in the U.S. provides two lessons: first, the doctrine of nondelegation relied on intelligible principle to hold the legislature to their responsibility for legislation has been proven too vague to enforce, and if enforced strictly, will led to arbitrary judicial intervention. Under this constraint, other substantive doctrines are preferable to the formalistic doctrine of nondelegation. Second, as the modem administrative state's mission complicates, instead of holding on to a formalistic transmission belt theory that counts on the legislature to realize the ideal of democracy, enhancing citizen participation in administrative rulemaking might be more fruitful. However, through introducing the U.S.' lesson, this article also argues for a significant enhancement of citizen participation in administrative rulemaking, which can shore up the democratic legitimacy that administrative agencies lack. Thus, by insisting upon democratic accountability in the national health insurance policy-making, Grand Justices' interpretation also implies an opportunity to strengthen the citizen participation in administrative rulemaking and make policy-making process truly belong to the public.