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|Title:||和為貴 ——由「合作行政」的概念論行政調解 的法制改革|
|Other Titles:||The Legal Reform of Administrative Mediation: A Study on the Concept of Cooperative Administration|
Cooperative Administration;Administrative Coordination;Administrative Procedure Act;Guilty Pleas;Administrative Contracts;Alternative Dispute Resolution ADR;Administrative Penalty;Administrative Agreement
|Issue Date:||2016-05-20 16:32:24 (UTC+8)|
Administrative Mediation (A.M) is a mechanism for solving conflicts which might occur during an administrative procedure or in the process of administrative litigation. Under the influence of the traditional principle: “No abandonment of public authority,” A.M was not widely grasped by scholars, including those in Taiwan. The Administrative Litigation Act did not provide for A.M until July 2000. The China Act for Administrative Litigation still maintains a negative attitude toward A.M to the present. The general ignorance of the importance of A.M in Taiwan can be demonstrated by considering four possible institutions of the Administrative Procedure Act which might be effective for solving administrative conflicts, namely, the systems of 1) Administrative Agreement, 2) Authority’s Promise, 3) Administrative Contract, and 4) Administrative Direction. In themselves, these four institutions are not sufficiently capable of solving administrative conflicts both in terms of the recognition of law and the design of systematic administrative conflicts. The plea-guilty system was adopted into Taiwan’s Criminal Procedure Law in 2004, and a similar system also was adopted for the field of tax-violations in 1992. However, the new Administrative Penalty Law still does not provide for such an institution. The tax practice’s adoption of such a plea-guilty system was not authorized by law but merely by ad hoc regulation of the Tax Authority. The ADR (Alternative Dispute Resolution), which was enacted in the USA, has been discussed recently in Taiwan. A leading scholar contends that this system—carrying the feature of the Administrative Direction—aims to solve conflicts pertaining to private rights. This is a misunderstanding of the ADR, but it has been transferred into the Governmental Purchase Act. This act allows the parties of a purchasing contract to apply for mediation when a conflict has occurred over contract duties. Therefore, the mediation system of this act should not be considered a system of A.M. In conclusion, the importance of A.M has not been recognized in the legislation enacted in Taiwan. It is here argued that the Administrative Procedure Act should deregulate and lift unnecessary restraints in order to give the people and the Administration more flexible ways to solve their problems.
|Relation:||法學評論, 121, 107-160|
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
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