Proportionality Review of Administrative Action in Japan, Korea, Taiwan, and China

Abstract

Much of East Asia has moved in recent decades toward more extensive substantive review of administrative action, and the doctrinal vehicle for this movement has typically been the adoption of some form of proportionality analysis. This contribution to an edited volume describes and offers explanations for the trajectory of proportionality review in Japan, South Korea, Taiwan, and China. Substantive judicial review of administrative action is far from uniform across these four countries. Whereas the Japanese judiciary remains reluctant to embrace proportionality review openly, courts in Korea and Taiwan have developed increasingly elaborate versions of proportionality analysis, and there are signs that the principle of proportionality is gaining traction in Chinese administrative law.

More surprisingly, however, our account also highlights the existence of significant differences within countries that rival in magnitude the differences between countries. These intranational as opposed to international variations are attributable in large part to the existence of multiple institutions with overlapping responsibility for shaping administrative law. In Korea and Taiwan, the existence of specialized constitutional courts in addition to ordinary courts or administrative courts has meant in practice that different courts sometimes end up applying competing versions of proportionality analysis to administrative decisionmaking. In China, the potential for intranational variation is even greater, notwithstanding the absence of constitutional review. A combination of uncoordinated experimentation at the provincial level, piecemeal legislation at the national level, and episodic guidance from top leadership has generated a fragmentation of administrative law and opened the door to multiple evolutionary possibilities.

The chapter concludes with a discussion of four potential explanations for the spread of proportionality review in East Asia that might also apply more broadly. These explanations are (1) conscious effort by courts to expand their own power, (2) the functional difficulty of performing substantive review without resort to some form of proportionality analysis, (3) the sheer global popularity of proportionality review, and (4) the potential for doctrinal migration from constitutional law to administrative law.

Keywords: administrative law, proportionality, China, Japan, Korea, Taiwan, rationality, Wednesbury, arbitrary or capricious, Administrative Procedure Act, constitutional review

JEL Classification: K2, K20, K4, K40, P2, P21, P1, P11