Viewpoint | Analysis of the principle of trust protection in administrative law

Published:

2021-11-19

Text The principle of trust protection embodies the goal of building a modern rule of law and maintaining the trust of citizens, and by analyzing the meaning of the principle of trust protection, the origin of theory and practice, the applicable conditions, we can find that it has important value in the administrative rule of law. However, at present, there are still some problems in the principle of trust protection, such as the concept of compensation and compensation is not clear, and the public interest and personal interest conflict. Therefore, China should continue to improve the principle of trust protection, so that the theory and norms of coordination. The meaning and requirements of the principle of trust protection. 1. The basic meaning of the principle of trust protection. That is, the government's actions or commitments to itself should be trustworthy and should not be changed at will. The principle of trust protection first appeared in China's administrative law in 1999 when Article 58 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the the People's Republic of China Administrative Procedure Law stipulated that the court made a judgment confirming that the administrative act was illegal and ordered the administrative organ to take corresponding remedial measures. The "Administrative Licensing Law" introduced the principle of trust protection for the first time. Article 8 stipulates that administrative licenses obtained by citizens, legal persons or other organizations in accordance with the law are protected by law, and administrative agencies shall not change the effective administrative licenses without authorization. If the laws, regulations and rules on which the administrative license is based are amended or abolished, or if the objective circumstances on which the administrative license is granted change significantly, the administrative organ may, in order to meet the needs of public interests, change or withdraw the administrative license that has been in force according to law. If property losses are caused to citizens, legal persons or other organizations as a result, the administrative organs shall compensate them in accordance with the law. In 2004, the State Council promulgated the "Implementation Outline for Comprehensively Promoting the Rule of Law", which reiterated that all administrative decisions must apply the principle of trust protection from the perspective of administrative law enforcement. 2. The requirements of the principle of trust protection. (1) Once an administrative act is made, it may not be revoked, annulled or changed at will without statutory reasons and through statutory procedures. (2) After the administrative organ has made an administrative act of granting benefits to the administrative counterpart, even if an illegal situation is found afterwards, as long as the illegal situation is not caused by the fault of the counterpart, the administrative organ shall not easily revoke or change it, unless such illegal administrative act will seriously damage the public interests of the state and society. (3) After the administrative act is made, if the laws, regulations, and rules on which the administrative act was made are modified or abolished afterwards, or the objective circumstances on which the administrative act was made have changed significantly, for the needs of the public interest. An administrative organ may withdraw, annul or change an administrative act it has already taken. (4) If the administrative organ cancels or changes its illegal administrative act, if this illegal situation is not caused by the fault of the relative, it shall compensate the relative for the losses suffered as a result. If an administrative organ withdraws, repeals or changes an administrative act legally made by it due to the need of public interest, if such withdrawal, repeal or change results in the loss of the relative, it shall also compensate the relative for the loss. The above four requirements reflect the necessary limitations of the principle of trust protection: 1. The abstract administrative acts of administrative organs do not have retroactive effect in principle. 2. The revocation of specific administrative acts shall be restricted. 3. The annulment of specific administrative acts shall be restricted. It can be seen that the application of the principle of trust protection reflects the constraints on administrative power and plays a key role in safeguarding the legitimate rights of administrative counterparts. The theoretical origin of the principle of trust protection. 1. The principle of legal stability. In EC law, the principle of trust protection originated from the principle of legal stability. The object of trust protection is the private trust in the continued state of the old law and the prevention of retroactive destruction of private behavior. According to the German legal philosopher H.Coing, the principle of legal stability includes two meanings:(1) the clarity of legal rights and obligations;(2) the stability of legal relations and legal states. Many German scholars also believe that the principle of legal stability has the dual significance of "legal peace" and "trust protection. In 1956, the High Administrative Court of West Berlin of the Federal Republic of Germany gave a living allowance to a civil servant's widow's judgment, which fully reflected the measurement of the public interest protected by administration according to law and the protection of private trust in the legality of administrative acts when there was a conflict between the principle of administration according to law and the principle of legal stability. In EC administrative law, the principle of legal stability played a pivotal role before the principle of reliance protection emerged as an independent administrative law in 1970. However, there are differences in focus between the two, with the principle of trust protection focusing on private subjective trust and the principle of legal stability focusing more on the stability and peace of objective law. 2. The principle of good faith. The principle of good faith is closely related to the principle of trust protection. Article 8 of the administrative license law stipulates that administrative organs shall not change the effective administrative license without authorization, which also reflects the specific connotation of the principle of good faith. Some scholars believe that the principle of good faith is the "imperial clause" of civil law, while civil law belongs to private law. The principle of trust protection is the basic principle of administrative law, while administrative law belongs to public law, and Article 8 of the Administrative Procedure Law of Taiwan region of China stipulates the two principles separately, which is not confused. Based on this, the principle of good faith should not be used as the theoretical source of the principle of trust protection. However, from the perspective of general legal principles, the principle of good faith in private law can also be applied in public law, and, from the analysis of the meaning of the principle of good faith, it itself has the importance of trust. Therefore, the principle of good faith can be used as the theoretical source of the principle of trust protection. 3. Basic rights guarantee theory. There are two theories in the theory of basic rights protection, the property right theory and the freedom right theory. The former argues that the Constitution guarantees immunity from infringement of a citizen's rights, whether that right is future or retroactive. These guarantees can be realized through property rights and expropriation compensation. For example, Article 8 of my country's Administrative Licensing Law stipulates that if property losses are caused to citizens, legal persons or other organizations, the administrative agency shall provide compensation in accordance with the law. The state should compensate for the damage caused by relying on the old law. The latter believes that trust protection is the embodiment of the right to protect freedom, people can demand that the exercise of administrative acts shall not infringe on individual rights, and should guarantee the possibility of people to realize their own acts by relying on the law. Therefore, the principle of trust protection requires that the administrative agency revokes or annuls the previously published provisions in force without prejudice to the rights of citizens who have relied on the provisions. The practical source of the principle of three faith-based protection. 1. Germany. The principle of trust protection originally originated in the Federal Republic of Germany, and the 1956 decision of the High Administrative Court of West Berlin of the Federal Republic of Germany triggered a discussion of trust protection in administrative law. Articles 48 and 49 of the Federal Procedural Code provide for the ex officio revocation of the administrative treatment of illegal grants and the ex officio repeal of the administrative treatment of legal grants, respectively. In addition, Germany, in stipulating the scope of application of the principle of trust protection, provides for the assurance of the effectiveness of the administrative plan, on the one hand, to ensure the stability of the individual's expectations of the administrative plan; on the other hand, according to the local political, economic and environmental situation, the administrative plan should be adjusted in due course. 2. Great Britain. The meaning of the UK's legitimate expectations is equivalent to the principle of trust protection, and the 1987 Ruddock case made the UK gradually pay attention to the principle of legitimate expectations. If the behavior of public institutions makes individuals expect it, if they want to change it, they need to listen to their opinions, unless the public interest suffers significant damage. In addition, English law provides for the principle of estoppels, which has a similar meaning to the principle of legitimate expectations and embodies the principle of trust protection. 3. United States, France. Although the United States and France do not specify the principle of trust protection, they are expressed through other principles. The principle of trust protection in the United States is through mutual trust and loyalty between administrative agencies, limiting the effective date and retroactivity of regulations, and prohibiting the performance of confession. France expresses the principle of trust protection through the protection of vested interests and the non-retroactivity of administrative law. IV. Conditions for the application of the principle of trust protection 1. Basis of trust. The basis of trust is the premise of trust protection, that is, the administrative acts of administrative organs that lead to trust, including concrete administrative acts and abstract administrative acts. Most scholars believe that the principle of trust protection should run through the whole process of administrative acts, in addition to invalid administrative acts, whether it is specific administrative acts or abstract administrative acts, whether it is legal administrative acts or illegal administrative acts, even if the administrative organs continue administrative practice, administrative inaction, should reflect the principle. 2. Reliance performance. The performance of trust refers to the disposition of the administrative counterpart due to the administrative act made by the administrative organ, including the disposal and use of property. German courts have given a broader interpretation of the act of disposition, as long as the administrative counterpart makes profound and lasting changes to the property, including acts of omission, the administrative organ is not allowed to revoke. 3. Legitimate trust. Article 48, paragraph 2, of the Federal German Code of Administrative Procedure lists three specific situations in which the principle of trust protection does not apply. Based on this, the principle of trust protection should be applied under the premise that the administrative counterpart is not at fault. It should be clear that the judgment of legitimacy, there are different views in theory, some scholars think that personal interests should be compared with the public interest, when the personal interest is greater than the public interest is justified; some scholars believe that legitimate not only requires legitimate expectations, but also still believes that the realization of the expectation should be guaranteed after the administrative organ changes its strategy. However, public welfare is not the only criterion for the establishment of trust protection, even if there is an urgent public interest, trust protection can still be considered, but the way of protection is changed to property compensation. V. Ways of protection of the principle of trust protection Theoretically, there are two ways to protect the trust interests of the relative person, survival protection and property protection. The former refers to the legal relationship between the subjects of administrative legal relations arising from administrative acts, regardless of whether they are legal or not, to stabilize the legal state trusted by the administrative counterpart. Two kinds of protection for the specific situation is different, the protection effect is not the same. 1. Survival protection. This protection reflects the legislative intent of the principle of trust protection, that is, to maintain the relative's trust in the appearance of the law. There is a difference in the way of survival protection when distinguishing between legitimate and illegal acts of benefit. For legitimate acts of benefit, the administrative organ shall uphold the principle of administration according to law and the principle of trust protection to survive its effectiveness; for illegal acts of benefit, if the trust is worthy of protection, it shall continue to survive; if the trust is not worthy of protection, in accordance with the principle of administration according to law, it shall be revoked and compensation for the losses of the counterpart. 2. Protection of property. Article 49 of the German Administrative Procedure Act stipulates that when an administrative organ annuls an administrative act of benefit, it shall, on the application of the counterpart, compensate the property disadvantage suffered by him or her as a result of his or her reliance on the deterministic force of the administrative act. Article 120 of the Administrative Procedure Law of the Taiwan Region stipulates that after the illegal administrative act of granting benefits has been revoked, the revocation authority shall provide reasonable compensation for the property damage suffered by the beneficiary as a result of relying on the disposition. The amount of compensation shall not exceed the benefit of the beneficiary as a result of the existence of the disposition. In the mainland, a distinction is made between compensation and compensation, and in view of the illegal act of granting benefits, the administrative organ shall give reasonable compensation to the counterpart when revoking the administrative act; in view of the legitimate administrative act of granting benefits, if the specific circumstances change, the relative shall not be abolished, the relative shall be compensated. The above two ways are the more common ways of protection, but the principle has also been questioned by many scholars, focusing on the uncertainty of the scope of compensation, increasing the instability of the application of the law. For example, while frequently applying the principle of trust protection, the European Court of Justice has held that illegal benefits should be revoked in accordance with lawful administration, especially for enterprises. Its judgment is based on the view that the public interest takes precedence over the individual interest, but this view undoubtedly shelves the principle of reliance protection under article 48 of the German Administrative Procedure Code. Professor Schwartz commented: "Although the EU Court of Justice is also aware of the concept of trust protection, its use of this principle is more limited than that of German domestic law." Therefore, when our country makes reasonable compensation, the amount of compensation cannot be less than the benefits obtained by the relative person as a result of the administrative act. Six norms of the application of the principle of trust protection. There are still problems in the principle of trust protection in our country. First of all, the boundary between administrative compensation and compensation is blurred. China's Administrative Licensing Law compensates and compensates for the losses caused to the administrative counterpart by the revocation or annulment of administrative acts by administrative organs. However, the standard of compensation and compensation is not defined, and there are no specific rules for operation, so in practice, it is easy to lead to excessive discretion and damage the legitimate rights and interests of the administrative counterpart. Secondly, the comparative measurement of public interest and individual interest is unbalanced. The principle of trust protection solves the problems arising from the trust interests of the administrative subject and the administrative counterpart, which to a large extent involves the public interest. The "Administrative Licensing Law" stipulates that based on trust and protection administrative agencies shall not modify or abolish administrative acts that have taken effect, but they can do so for the needs of the public interest and compensate the counterparty for damage. It can be seen that when faced with the loss of public interest, priority should be given to it. However, if the limits of the public interest are not well grasped, there will be acts of harming the rights and interests of the counterparty in the name of damage to the public interest. Therefore, the scope of public interest should be clarified, that is, facing the public, not a part of the group; the content is public; the nature is public. If the principle of trust protection is to play a role in the legal order of a country, a very important prerequisite is that the legitimate rights and interests of individuals are valued, rather than just an accessory to the public interest. In view of the problems existing in the principle of trust protection in our country, our country should promulgate specific implementation rules to make clear, or promulgate the administrative procedure law, and regard the principle of trust protection as the principle of the whole field of administrative law. At the same time, the standards of administrative compensation and compensation should be clarified through clear procedural steps to avoid secondary damage to the administrative counterpart; the principle of trust protection is a means to solve the problems caused by the trust interests of administrative agencies and administrative counterparts. Correctly defining the scope of public interests is very important to protect private rights and interests. Therefore, in practice, it is necessary to fully consider the specific circumstances and reasonably define disputes. The principle of trust protection is an important principle in administrative law, which plays an important role in restricting administrative power and ensuring the interests of administrative counterparts. Referring to the provisions of the principle of trust protection in foreign countries, we can find that the principle has gradually been paid attention to by law and a perfect legal system has been established. However, the principle of trust protection in China is still in the stage of theoretical exploration, and the specific concept and balance of interests should continue to be improved.

Key words: