On The Precautionary Principle of Administrative Law

• Main Authors: CHIU,MING-TZU, 邱明慈
• Other Authors: CHERNG,MING-SHIOU
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/81198519077912555449

碩士 === 東吳大學 === 法律學系 === 104 === Due to the rapid change of modern society and advances in science and technology, the daily livings of human life has become more convenient and intelligently developed than ever. On the other side of the coin, the difficulty for scientific method to prove such existences of a potential risk has gain correspondingly, where bearability of the damage remains unclear. Therefore, regulatory state in modern days has introduced laws and measures in a preventive manner, in purpose of protecting the well-being of health and humans lives. The proposition of the Precautionary principle emphasizes that taking precautionary measures before real damage occurs may lead to the avoidance on an unbearable damage, or where the damage is hard to recover. However, to take precautionary method is to wave a double-edged sword. For the other side, it involves measures that would restrict or limit people’s freedom in the private sphere. Therefore, raising series questions under the rule of law：To what degree may the precautionary take place, without violating the rule of law? The first issue takes place asking what condition should a state fulfill while intervening the private sphere；The second takes place on how the state should moderate the precautionary measures properly. And last but not the least, on how to adopt corresponding measures which would comply with the minimization requirement where scientific risk are unknown. In terms of constitutional grounds, this article argues that the Precautionary principle should be incorporated based on the “The states duty to protect” under the constitutional law. The state’s duty to protect under the constitution requires a state to ensure that the individual right of people should be fulfilled in all time. To cope with the rapid development of new technologies and social changes, the scope of the state duty should be enlarged where effective responses are ensured to prevent the infringement of fundamental rights. For this Instance, by determining it's standing under the Constitution, Precautionary principle should rely its footing under the notion of duty to protect, due to its ex ante function. Moreover, this article argues its constitutional standing through positive law where numerous cases are discussed under this article. Leading by the concurring opinion of J.Y. Interpretation No. 714 written by justice Chen,Chun-Sheng, the precautionary principle are sought to draws more attention through legislative and case decisions, showing the necessity for a constitutional arrangement to take place. At last, this article provides a perspective on how the Precautionary Principle should be applied, since the principle is not a one size fit all, but requires examining case by case. Therefore, in keeping the elastic to respond science and technology issues, precautionary principle should be prescribed by law, and detailed under specialized field, governed by administrative rules, in order to establish a sound and functional legal framework.