The Constitutional Limit between the Legislative Power and Administrative Power

• Main Authors: Lin, Wei-Yu, 林偉譽
• Other Authors: Fu-Ching Wang
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/623n32

碩士 === 國立雲林科技大學 === 科技法律研究所 === 107 === Legislative Power and Administrative Power are the recognition of the democratic government. However, the interaction between Legislative Power and Administrative Power has been imitated as to be indistinguishable from the original since they are virtually separated from interdependence. The state power limit and tasks division, regulated by the constitution, which belong to the power of constitutionalists is called " Verfassungsvorbehalt." Without the basis of constitutional entrustment or authorization, the legislators are not allowed to legally intervene in Administrative Power. This is the mutual equality between Legislative Power and Administrative Power under the framework of Five Power Division, but rather than that Legislative Power surpass Administrative Power. However, under the political system of political parties, the implementation of policies due to the party alternation is subject to that the legislators attempt to intervene the ruling party by the mean of enactment with Legislative Power. Thus, under Verfassungsvorbehalt, Legislative Power can only claim that Administrative Power is subject to Gesetzesvorbehalt in the execution of administrative matters, and violates the limit of administrative retention. In contrast, the executives administer affairs in accordance with the law, nor may claim to expand the power of legal interpretation under the basis of law entrustment or authorization, improperly promulgate various interpretative letters and administrative rules to go beyond Gesetzesvorbehalt of Legislative Power. Geltungsvorrang is applied to the effectiveness of the norm. In addition, Legislative Power and Administrative Power should scrupulously observe the power of constitutional limit, but not to expand their respective powers, deprive of right of another, effectively construct a constitutional government system, and defend the constitutional order. The constitutional principle and the constitutional internal struggle crisis between Legislative Power and Administrative Power cited by the author of this thesis is intended to review the constitutional conflicts between Legislative Power and Administrative Power in recent years in our country, and then to explore how Constitution of our country regulates the separation of powers and balances constitutional limit between Legislative Power and Administrative Power. This study adopts Literature Review to look back the implementation of constitutionalism in our country. In addition, literatures are also inductive and compiled in order to put forward the opinions and views under the discussion on constitutionalism structure.