Table of Contents

Comparative Law and Regulation

Comparative Law and Regulation

Understanding the Global Regulatory Process

Research Handbooks in Comparative Law series

Edited by Francesca Bignami and David Zaring

Governance by regulation – rules propounded and enforced by bureaucracies – is taking a growing share of the sum total of governance. Once thought to be an American phenomenon, it is now a central form of state action in every part of the world, including Europe, Latin America, and Asia, and it is at the core of much international lawmaking. In Comparative Law and Regulation, original contributions by leading scholars in the field focus both on the legal dimension of regulation and on how this dimension operates in those places that have turned to regulation to meet their obligations.

Chapter 11: Proportionality review of administrative action in Japan, Korea, Taiwan, and China

Cheng-Yi Huang and David S. Law

Subjects: law - academic, comparative law, regulation and governance

Extract

Judicial control of administrative action is not a novel idea in East Asia, but it has emerged under less than promising conditions. Much of the political economy literature has identified pervasive state management of the economy as the key to the unprecedented prosperity enjoyed by East Asian countries such as Japan, South Korea, Taiwan, and more recently China (Johnson, 1982; Wade, 1992; Kohli, 2004). It is not immediately obvious why a regime that relies on extensive administrative control to achieve economic success would invite or even tolerate judicially imposed limits on the very administrative apparatus responsible for that success. Nevertheless, in all four of these countries, regulators face a variety of limits on their power, and courts play a role in enforcing those limits. In South Korea and Taiwan, democratization led to demands that state regulation be more responsive to the wishes of private actors and subject to statutory constraints (Baum, 2011). In China, judicial review has joined political control by the ruling partyand internal control by the bureaucratic hierarchy as an added restraint upon administrative decisionmaking. Even in an authoritarian state such as China, judicial review of administrative action can be valuable to the regime as a means of monitoring its own bureaucrats and reducing agency costs (Ginsburg, 2008; He, 2009: 148–50). Thus, across a wide range of political and institutional settings in East Asia, courts find themselves in the position of having to regulate the regulators, and that task involves at least some substantive review of agency action.

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