On The Administrative Law Of The Principle Of Law Reservation

Since the thought of rule by law since the beginning, the principle of law reservation this theory has attracted much attention. Otto Maver as the German administrative law circles, his masterpiece " administrative law " was published in1895, the principle of law reservation appeared for the first time, affirmed that " the principle of administration according to law " contains the principle of law reservation and the principle of law priority. The principle of law reservation status after has been very important, whether Germany from formal rule of law state gradually developed to the substantial rule of law state, or the theory gradually towards Germany. Japan, China and other countries as reference and learning. The principle of legal reservation in spite of range after change for many times, in different countries show different characteristics, but in the administrative law of the principle of law reservation has been occupied a very important position. On the principle of administration according to law, the principle of law reservation has been regarded as the core and existence, reflects the principles of the rule of law, on the other hand also serves as the rule of law is an important content and existence. For administrative act whether and to what extent must have legal basis for this problem are explored, which is the principle of law reservation of the connotation of. The principle of legal reservation in different countries, social background and the historical change of the function of different period, different characteristics. The author uses the method of comparative analysis, empirical analysis and value analysis and other methods, in-depth study of the principle of law reservation connotation, specific scope and countermeasure measure, systematically master the principle of law reservation of legal principles, and in our country under the background of constitutional government, the empirical analysis of constitutional and administrative law, law and legislation part of law, with a view to the theory of the law reserves construction contribution.The content of this paper will be divided into five Department of:The first part, an overview of the principle of law reservation. Briefly described the principle of law reservation of the origin, meaning and legal basis of legal reservation, connotation, extension and important significance to clarify.The second part, on foreign legal reservation principle theories and legislation of reservation of law in Germany, particularly in the legislation as an example. In theory, theory of importance that legal reservation existence significance, but there are still many differences exist in the scope of legal reservation on this issue. For reservation of law scope of this problem, the history of theory model has many, such as against the retention, importance, comprehensive theory, retention, retention power of organ retention, in the administration of each development period, the theoretical models produced different effects, and accordingly to the distribution of legislative power, executive power and judicial power. The trespass to retain said is the traditional doctrine, is generally thought to originate from Otto B. Mayer against retention limit, he believes that "the classical form is a citizen’s personal freedom, the civil liberties or basic rights decide. Express or implied the retention of basic rights, so that the citizens’freedom of the person, property and other rights are not violated, the interference of these rights must be legal reason or the presence of legal basis." German administrative law professor Fritz Ossenbuhl has raised the importance of theory, following the classical theory against the retention theory the most influential theory, after the German Federal Constitutional Court accepted, importance of theory point of view, by the law of important civil rights and obligations, there must be a clear legal basis of administrative behavior violations of basic civil rights and obligations, important. For the retention of the classical theory of infringement and implications for contemporary practice the importance of theory by focusing on the specific application, and the controversial points such as limited retention and fully retained, paying the administration and special power relation of two areas of the reservation of law applicable problem to make thorough analysis.The third part, this chapter through elaborating our country legal retention implementation present situation, to our country relevant law are introduced and analyzed, in our country, the current " legislative law " is about the legal reserved for relatively detailed legal. But in the specific application of no on the basis of the two kinds of theories, but rather to enumerate the way to determine the legal reserved range. On the principle of law reservation and the applicable scope of the problem in our country at present, although had certain development, but still do not have perfect laws and regulations, still need to go a long way to develop and mature, in practice, there are still many problems so that the legitimate rights and interests of citizens, such as personal, property rights and other received infringement it is often seen. The sample, no administrative organs should be protected, the article summed up in our country legal reservation principle implementation is insufficient at the same time, review and amendment on China s legal reservation principle applicable countermeasures made beneficial evaluation.The fourth part, our country legal retention principle and implementation mechanism. In our country, the principle of legal reservation in law system is the embodiment of: Legislative Supervision, such as the administrative regulations and rules, as well as the authorized legislation for issues in the legislation law of eighty-ninth and ninetieth made specific provision, complementary with the judicial organs supervision and local government new attempt. While there is no perfect relevant legal reservation principle and application scope of the laws, but security mechanism is at present the most serious problem, the principle of law reservation protection range was very limited, even in this limited scope, legal reservation principle is not complete, make the legislation efforts have been offset. The law of our country the use defects made thorough analysis, and the legislative construction level and put forward its own views and corresponding countermeasure, may the theory set still immature, but for some aspects of the idea still has its own unique understanding, with period for our country legal reservation principle of legislation contribution to a force.The fifth part, conclusion. Reservation of law is the rule of law is one of the important content, but also embodies the concept of rule of law. In our country socialism in the process of rule of law, the principle of law reservation established is a very important step, but still need to go a long way in order to achieve the " mature’...