The Strength Of Judicial Review Of The Legal Concept Of Undefined In Administrative Law

In the administrative law,there is a reason why the judicial review intensity of the legal concept of undefined has been paid highly attention.On one hand,according to the principle of law-based administration and the concept of law-based governing the country,the purpose is to achieve the judicial review comprehensively administrative areas and play a supervisory role of administrative litigation.On the other hand,in order to make extensive and complex administrative activities full of energy,we lean to by using uncertain legal concept given to administrative freedom from fixed legal regulation,this makes the uncertain legal concept of judicial review intensity become scholars research field.Because the administrative department is endowed with the space of self-judgment and flexible self-judgment in the application of the legal concept of undefined,the intensity of judicial review is become complicated and difficult.But,the administrative department play its technical expertise and personal judgment,both conforms to the modern administrative initiative,and the formative characteristic of modern administrative,however,the particularity of administrative sometimes may cause executive power in the country of functional structure regime and metamorphism.Because in many cases,it is hard to get an authority conclusion with the legal concept of undefined,the administrative department has broad discretion space,private rights is uncertain status in individual case,how to protect the private rights and regulation of executive power,this is more responsibility of the administrative department.In other words,when it comes to the application of the legal concept undefined,how much power does the judicial review?What kind of limitation not only supervises the lawful and reasonable performance of the administrative organ,but also limits the free of judicial review? These questions have not been well answered,and some superficial studies are carried out in this paper.This article is based on the perspective of judicial review intensity tothe legal concept of undefined,after research the basic theory,combine with the two cases,summarize the problems,eventually improve intensity of judicial review of the legal concept of undefined.This article is mainly divided into five chapters:Chapter 1,firstly,the uncertain legal concept makes a defines,then classify based on definition,And the type is different and the specification will be different.then analyze the relationship between the legal concept of undefined and the administrative discretion,this paper argues that uncertain legal concepts and administrative discretion should be strictly distinguish,the purpose is to prevent the administrative power was abused and avoid to judicial review.Through the basic discussion of this chapter,we have generally understood the uncertain legal concept.Chapter 2,according to the current situation to judicial review intensity of the legal concept of undefined,analyzes the existing system flaw,and combined with two specific cases in the judicial practice,analyzes the present situation of the special case in judicial review.Chapter 3,based on the nature of the legal concept of undefined,according to the purpose of the law-based administration and the principle of judicial decision,analyzes the basic theory of executive power is reviewed.Chapter 4,analyzes judicial review intensity of the uncertain legal concept of Germany,Taiwan and Japan,mainly describes they have different forms of judicial review intensity,but the same nature,especially in Germany and Taiwan,the principle of the comprehensive review and“margin of appreciation”,and our country should learn.Chapter 5,the theory and practice with reference to Germany,Taiwan,with the reality of our country,improving our judicial review intensity of the legal concept of undefined,mainly improve from the two standards of the strict review and reasonable review,and assist via establishing the institution of case guidance.