代写范文

留学资讯

写作技巧

论文代写专题

服务承诺

资金托管
原创保证
实力保障
24小时客服
使命必达

51Due提供Essay,Paper,Report,Assignment等学科作业的代写与辅导,同时涵盖Personal Statement,转学申请等留学文书代写。

51Due将让你达成学业目标
51Due将让你达成学业目标
51Due将让你达成学业目标
51Due将让你达成学业目标

私人订制你的未来职场 世界名企,高端行业岗位等 在新的起点上实现更高水平的发展

积累工作经验
多元化文化交流
专业实操技能
建立人际资源圈

Regulatory review in the United States

2018-10-27 来源: 51due教员组 类别: Essay范文

下面为大家整理一篇优秀的essay代写范文- Regulatory review in the United States,供大家参考学习,这篇论文讨论了美国的法规审查。美国的法规审查,指的是法定的有权机关依据一定程序对法律规范性文件的合法性或合宪性进行审查;其实体的核心内容在于适用不同的审查标准来检验法律规范性文件对基本权利的限制是否正当。从法规审查建制较成熟和实务经验较丰富的西方发达国家来看,审查标准堪称法规审查的关键技术。美国法院在这项工作上已建立了以双重标准为基础的类型化标准体系。

Regulatory review,美国法规审查,essay代写,作业代写,代写

The examination of laws and regulations refers to the examination of the legality or constitutionality of legal normative documents by legal authorities according to certain procedures. The core content of its entity lies in the application of different review standards to test whether the restrictions of legal normative documents on fundamental rights are justified. Judging from the western developed countries with more mature and practical experience, the review standard is the key technology of the review. The U.S. courts have perfected this work and have established a typed standard system based on double standards.

In the United States, freedom is traditionally divided into spiritual freedom and economic freedom, and equality is divided into "suspect classification" and "general classification". Therefore, loose and strict standards are applied to the legality review of the restriction of fundamental rights in different fields. Later, with the changes in the socio-political and economic environment and the changes in the court's human rights protection strategy, the court lowered the censorship standards for part of spiritual freedom and gradually improved the censorship standards for part of economic freedom. In this way, the rigid structure of double standards has liquidity. In order to adapt to the fact of the change of double standard structure, it is necessary to reconstruct the former double standard. At present, China's regulatory review still lacks such operational technology. The analysis of American double standards can provide useful reference for the construction of China's code review standard system.

The prototype of American double standards is derived from footnote 4 of United States v, Carolene Products in 1938. Justice Stone here systematically expresses the famous double standard theory in the form of notes. The summary of this note is as follows: when government legislation or measures involve fundamental rights unrelated to democratic procedures, that is, fundamental rights in the economic and social sphere, the court respects the legislation and adopts the principle of constitutional presumption. The constitution expressly forbids infringement of fundamental rights and the application of the constitutionality presumption principle will be restricted. The fundamental rights enshrined in the first ten amendments to the U.S. constitution should be particularly protected and scrutinized by the courts, and article 14 of the amendment should be adopted to apply these constitutional rights, which were originally directed against the federal government, to the states. The fundamental rights limited by the government, such as those relating to democratic procedures, will be examined more strictly by the courts under article 14 of the constitutional amendment than laws affecting economic procedures. These rights include the right to vote, the right to free speech, the right to political association and the right to freedom of peaceful assembly. Governmental restrictions on the fundamental rights of minorities that have long been separated and isolated from the public should also be subject to increased scrutiny by the courts, since the violation of those fundamental rights could easily lead to obstruction of the functioning of democratic processes expected to protect minorities.

Academic interpretation in Stone justice annotations, think it means the court cases involving spiritual liberty and equal rights of ethnic minorities than economic liberty is more strict censorship, its legitimacy basis superiority lies in the spirit of freedom is the value of economic freedom on the one hand, on the other hand is the democratic political process to the basic role of democracy. At the same time, double standards are also based on the constitutional norms of the provisions of the basic rights to protect the varying degrees of the text itself.

Since then, the court actively implemented the annotated opinion four in the trial practice. In a series of cases since 1940, the courts have mostly scrutinized cases involving fundamental rights such as freedom of speech, elections, travel, migration and litigation, as well as restrictions on the rights of minorities to equality. However, the examination of property rights cases is carried on the traditional non-interference attitude and adopts the most relaxed examination standard. In this way, the double standard established by the annotated fourth of the Carolene Products judgment was established in the practice of regulatory review.

But in the days of the berge court and the court of lunkhurst, there have been some departures from traditional double standards. For example, in the case of Lynch v.h. ousehold Finance Corp in 1972, the Supreme Court clearly declared that it was wrong to distinguish rights as "liberty" and "property rights". People have the right not to be illegally deprived of property. Property rights are the same as freedom of speech and travel. Property rights and freedom cannot exist alone. Since the 1990s, the Supreme Court has significantly improved its examination standards for laws that restrict property rights, almost to the same degree as the regulations that limit spiritual freedom.

The standards of review for freedom of speech cases in the field of spiritual freedom are also divided. In the long trial practice, the court has developed some complicated examination standards for free speech cases. In order to make these standards easy to be understood and mastered by ordinary people, both the practical and theoretical circles are committed to establishing an integration theory, so that these complex and difficult standards can be more clear and simple under the integration theory, which is known as the two-track theory and the two-level theory. In this way, freedom of speech is systematically typed, so that each type of speech corresponds to a specific standard of censorship.

It can be seen from the trend that the degree of review of property rights is improved and the degree of review of freedom of speech is typed. Although the examination standards of some property rights restriction cases are not as strict as that of "high value speech" cases, the degree is not lower than that of "low value speech" cases. On the other hand, due to the loose interest measurement standard for the regulation of "non-content speech", the degree of review of some cases is actually equivalent to that of the traditional reasonable review of property rights. In this way, the static dualistic structure of traditional double standards for spiritual freedom and economic freedom review no longer exists, and the application of double standards becomes more relaxed and mobile.

In fact, the double standard theory is the product of the specific American historical experience. Traditionally, censorship involving restrictions on spiritual freedom was stricter than economic freedom because of the fact that American courts retreated from the battlefield of economic freedom in the face of the demands of the political situation around 1937, rather than purely due to constitutional theories such as the so-called democratic principles or the value status of rights. The strict examination of the "suspect classification" of race in equality cases is also related to the court's historical reflection on the racist persecution of German fascists at that time and on domestic racial discrimination and prejudice. In later court trial practice, the fluidity of double standards in the fields of economic freedom and spiritual freedom also reflects the different attitudes towards the two human rights values in different historical periods. The rigid and extreme structure of traditional double standards is rooted in the neglect of the concrete value of human rights in individual cases.

The fact of the change of double standard structure objectively needs a new legal theory to justify it. However, since the basic framework of double standards is not fundamentally shaken, we do not intend to break the traditional jurisprudence or tear it down again, but just hope to integrate and improve it based on the constituent elements of traditional jurisprudence, and to heal the cracks of double standards theory in the new situation through reconstructing jurisprudence. As we all know, traditional jurisprudence is basically derived from the interpretation and extension of Lord justice stone's annotation iv. The new construction of jurisprudence must also first return to the content of annotated four, reinterpret it in today's perspective, and integrate jurisprudence on this basis. Note 4 typifies the standard of examination through the dual-line structure of the field of entity due process protection and the field of equal rights protection. In order to reconstruct the legal principle of double standard, we may first analyze the double line structure of double standard, and then extract the specific theoretical elements for reflection reconstruction.

By note 4, we can see that the typed examination is based on the following grounds: the constitution expressly forbids violations of fundamental rights, that is, human rights as defined in the first ten articles of the amendment shall be more strictly protected; Freedom of speech, freedom of religion, and assembly election rights such as spiritual freedom of association, for it has a basic status on democracy and freedom in the superior position in the constitution, for the democratic political process an unimpeded and from collapse, at the same time, also for fundamentally guarantee decision-making in the field of economic freedom justification and legitimacy and democracy, the national law the limiting behavior of the implementation of the spirit of freedom should be strict censorship. The academic community generally believes that this is the legal basis of the double standard theory of spiritual freedom and economic freedom implied by the annotation. Later, some scholars believe that this legal basis comes from the express stipulation of constitutional norms, so it is called constitutional norms theory. Some scholars believe that this jurisprudence is derived from the importance of the value of fundamental rights, so it is called the theory of fundamental rights. The author thinks that the internal logic of either the constitutional norm theory or the fundamental right theory of value is consistent. Constitutional norms expressly prohibit the infringement of certain rights because the constitution recognizes the value and importance of these rights. It can be seen that the constitutional norm theory can be essentially absorbed by the axiology of fundamental rights.

In this case, we can try to reconstruct the jurisprudence from the theory of fundamental rights. Let's start with the interpretation of the fundamental right theory of value to double standards. As mentioned above, in reality, economic freedom tends to be strengthened and spiritual freedom is not always strictly examined. In theory, economic freedom is not absolutely inferior to spiritual freedom, because some economic freedom has personality rights and strong spiritual freedom. Can the theory of fundamental rights theoretically bridge this disjunction in fact? In the author's opinion, if we do not define its value importance from the nature of fundamental rights abstractly, but from the influence of rights in specific cases on personal personality development, that is, the relationship with personality rights to determine its value importance, the cracks in the double standard can be theoretically bridged. In essence, American courts have made a double standard distinction between spiritual freedom and economic freedom, as well as a "two-track" and "two-step" division of freedom of speech, because this jurisprudence has played a substantial role.

It is possible and necessary to define the specific value of basic rights by the distance between basic rights and personality rights in specific cases. From the perspective of possibility, any right involves the self-expression of personal personality or the interests fully developed in society, so any right can be measured by value from the relationship with the personality right. From the point of necessity, any constitutional right has its complex form in reality, and it is difficult to define its value abstractly. Phenomenon of human rights increasingly rich in addition, the contemporary society, with the country to the attention of the right to live in modern society, economic and social rights often crisscross of rights with the personality right, at the same time some spiritual freedom with economic freedom and personality that makes fundamental rights value cannot be obtained from the nature of the right, but must be based on the analysis of the measured and the practical importance of personality right.

By virtue of the core jurisprudence of the right of personality, a precise argument can be obtained for the determination of the legality review standard of the limitation of fundamental rights. If the infringement of spiritual freedom can be divided into internal spiritual freedom and external spiritual freedom. Internal spiritual freedom is an internal spiritual activity purely belonging to individual thoughts and beliefs. As such activity will not have any impact on the rights and freedoms of others, the violation of this field should be examined with absolute guarantee. External spiritual freedom, as reflected by the individual's ideological and spiritual activities, will have a certain impact on society and other people. Therefore, restrictions in this field should be examined in different ways, including the type of content of basic rights in specific cases and the time and place of restriction. In the field of economic freedom, it can also be divided into two parts according to its degree of connection with the personality right. The economic freedom right closely related to the personality right, such as the restrictions related to the individual's right to survival and development, the professional freedom and the right to education, should be examined with strict standards. However, the restriction of economic freedom rights, which is related to personality rights, is the discretionary power of a country's policy formation, so its constitutionality should be judged by loose standards.

We are still observing from note 4. Note 4 states that cases of discrimination against ethnic, religious and other minorities that are separated and isolated may seriously affect the functioning of the political process on which the protection of those minorities depends. Later, people all think that the reason for the strict review of suspect classification lies in the complementary effect of the judicial system on the defects of democratic political procedure, which is the democratic procedure complementarity. However, the author still doubts that such minorities are often vulnerable in terms of social and economic aspects, so it is hard to say that there is no economic consideration for the strict examination of suspected discrimination.

Later, the trial practice also classified the state's quasi-suspect behavior, namely, the cases of discrimination against sex and illegitimate children, to carry out a more rigorous examination than the rationality review -- moderate examination, but there was no clear statement on its legal basis. As for the general classification, which is based on the property status, foreigners, sexual orientation, criminal record, etc., the court takes the rationality review, and its legal basis is basically no one deeply studied. It can be seen that the justification of the typed review standard in the field of equal rights protection is not deep, and the existing arguments are not convincing enough.

51due留学教育原创版权郑重声明:原创essay代写范文源自编辑创作,未经官方许可,网站谢绝转载。对于侵权行为,未经同意的情况下,51Due有权追究法律责任。主要业务有essay代写、assignment代写、paper代写、作业代写服务。

51due为留学生提供最好的essay代写服务,亲们可以进入主页了解和获取更多essay代写范文 提供代写服务,详情可以咨询我们的客服QQ:800020041。

上一篇:U.S. aid to Africa 下一篇:British colonial policy