論行政處分撤銷與廢止之除斥期間

Abstract

我國行政程序法第二章「行政處分」，對行政處分之成立、程序、效力等，設有詳細而完整之規定。其中第一二一條、第一二四條為行政處分撤銷及廢止之「除斥期間」，居於行政處分效力規定之末，其是否及如何適用，攸關人民權益保障、依法行政原則、公共利益維護三者間之互動與調和。此二條文繼受自德國聯邦行政程序法第四十八條、第四十九條，比較內容，同中有異，其解釋與適用所生之疑義與難題，呈現法繼受、法比較與法解釋三者之間微妙的關係，值得研究。為期理論與實務得以交互印證，本文先從實務裁判中各擇取一則「導引案例」，逐次分析爭點及法院見解，再進行法制比較、問題探討及綜合分析，最後提出本文見解及修法建議，以供參考。

Chapter II ＂Administrative Disposition＂ of Administrative Procedure Act, which thoroughly provided the regulations of Administrative Disposition in detail, contains the establishment (including the concepts, approaches, and validity of Administrative Disposition), procedure (state of opinion and hearing), and the legal effects (including revocation, annulment and the reopening of the administrative proceedings) of Administrative Disposition. The ＂exclusion period＂ of the revocation and annulment of Administrative Dispositions are established in article 121 and article 124 of the Administrative Procedure Act. Although these articles are placed in the end of every regulation that provided the changing effects of Administrative Disposition (such as revocation and annulment), they still play an important role as a key to carrying out the principle of legal administration and achieving Administrative Tasks which aimed to improve public welfare. Whether or not-and how-to carry out these articles, therefore, are of great concern to the interaction and counterbalance of the protection of individual rights and interests, the principle of legal administration, and public welfare. The concepts of article 121 and article 124 are based on article 48 and 49 of the German’s Federal Administrative Procedure Act. However, there are still differences between those similar articles. And the difficulties in explaining and carrying out those articles exactly reflect the subtle relationship between adopted law, comparative law and the explanation of law, which is also an important issue that worth mentioning and researching. This article first discusses the exclusion period of the revocation and annulment of Administrative Dispositions, and then in regular order discusses the meaning of the relevant regulations of Administrative Procedure Act that related to this topic and their difficulties when carrying out in individual cases, finally proposes the view of its own. In order to confirm theory and practice for each other, several cases from administrative court decisions is cited as examples in this Article. And this article also continues to analyze and discuss disputes and verdicts of the administrative courts, and lastly conducts a comparative law study, questions for discussion, and a comprehensive analysis.