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

Research Handbook in Comparative Law and Regulation (Francesca Bignami & David Zaring eds., Edward Elgar: 2015 Forthcoming)

Washington University in St. Louis Legal Studies Research Paper No. 14-08-07

41 Pages Posted: 16 Sep 2014 Last revised: 28 Oct 2014

See all articles by Cheng-Yi Huang

Cheng-Yi Huang

Institutum Iurisprudentiae, Academia Sinica; University of Chicago - Law School

David S. Law

The University of Hong Kong - Faculty of Law; University of California, Irvine School of Law

Date Written: October 28, 2014

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

Suggested Citation

Huang, Cheng-Yi and Law, David S., Proportionality Review of Administrative Action in Japan, Korea, Taiwan, and China (October 28, 2014). Research Handbook in Comparative Law and Regulation (Francesca Bignami & David Zaring eds., Edward Elgar: 2015 Forthcoming); Washington University in St. Louis Legal Studies Research Paper No. 14-08-07. Available at SSRN: https://ssrn.com/abstract=2496220

Cheng-Yi Huang

Institutum Iurisprudentiae, Academia Sinica ( email )

128 Academia Sinica Rd., Sec. 2
Nankang
Taipei City, 11529
Taiwan
886-2-2652-5420 (Phone)
886-2-2785-9471 (Fax)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

David S. Law (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.davidlaw.ca

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

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