The National Risk Decision and the Supervision over the National Risk Decision—the Establishment of "The Risk Principle" as the Central Idea

• Main Authors: Tsung-I Chen, 陳宗憶
• Other Authors: 許宗力
• Format: Others
• Language: zh-TW
• Published: 2008
• Online Access: http://ndltd.ncl.edu.tw/handle/65892370752861741138

碩士 === 國立臺灣大學 === 法律學研究所 === 96 === Various risk debates, such as the establishment of nuclear power plants in Taiwan, have been constantly challenging our legal system, causing the dilemma of decision-making in the filed of national policy and wasting a plenty of social costs. This thesis tries to solve the question on which national power is entitled to make the ultimate decisions for the risk affairs, and meanwhile, to emphasize the discussion of judicial review of abstract laws with respect to risk policy decisions in order to bring out a series of illustrations of risk concept, Risk Rechtsstaat and risk principle. First, in order to establish the concept of legal risk, by referring to (a)”risk society theory” proposed by Ulrich Beck which applies the concept of preventing from the vengeance of technology and the concept of “sub-politics theory” as well, (b) “observation theory” proposed by Niklas Luhmann which aims to dissolve the blind spot of risk evaluation and (c) the description of the awareness of risk proposed by Scott Lash which explores the problem of risk attribution, this thesis tries to put forward the idea that the key point of solving the legal risk is the risk procedure which means the evaluation for the risk and communication about the risk triggered by the awareness of the risk. If the risk decision made by one nation (either by legislators or administrators) complies with the procedure viewpoints proposed by U. Beck and conforms to the first order and second order observation by N. Luhmann, legislators and administrators may be entitled to make the ultimate decisions for the risk affairs. On the contrary, if legislators and administrators breach the procedure mentioned above, the judiciary shall be the final decision maker for any risk policy. Hence, the establishment of Risk Rechtsstaat and risk principle theory is to emphasize that the protection of people’s survival right must exist in the right of subjective procedure. The risk decision made by legislators and administrators shall be restrained by the idea of risk procedure. The review of risk procedure plays as the main string of the supervision over risk decisions of the judicial branch. By emphasizing the spirit of due process, it is helpful for the judicial branch to resolve the dispute on the attribution of risk and to clarify the responsibility of proof-giving arising from the uncertainty of truthfulness of the facts. Therefore, the disadvantage arising from the uncertainty of the truthfulness of the facts shall be born by people provided that legislators have complied with the risk procedure to stipulate any regulations for risks; vice versa. When the judicial branch evaluates the pros and cons in connection with any specific problems by implementing the traditional principle of proportionality, the problems of uncertainty (probability) arising from Risk Rechtsstaat will make the implementation of principle of proportionality collapsed, and the right judgment of probability shall be ensured through the risk procedure and further the judgment of principle of proportionality will be affected. In summary, only the spirit of due process can ensure the correctness of risk decisions made by one nation and endow the judicial branch with the standards to supervise over the risk decisions made by one nation.