摘要
诉愿乃是人民因行政机关所为违法或不当之行政处分侵害其权益,或机关怠于作出人民申请之行政处分而侵害其权益时,于行政体系内之救济制度。我国台湾地区之诉愿制度肇始于《中华民国临时约法》。自此后,诉愿即为人民对抗"国家"(行政机关)公权力侵害之重要基本权利。1930年之"诉愿法"确立了诉愿、再诉愿的两级制。1998年修正时,废除再诉愿,目前仅剩诉愿一级。且诉愿之性质、功能之加强和诉愿决定之拘束力在新修法中都有明确体现。但现行法仍有些规定或不合时宜,或因相关法规已修正,而有修正之必要。诉愿之提起改为向诉愿管辖机关提起、由委托机关作为诉愿管辖机关、增设拒为处分之课以义务诉愿都是未来可能之修法方向。在共同诉愿及诉愿参加上也宜有较大修正。而在诉愿制度之存废问题上,参照德日制度同时,也应注意到诉愿制度在我国台湾地区之独特性。
Petition is a relief system within the administrative system when the peoples ngnt or interest is harmed by the administrative body＇s illegal behaviors, improper administrative punishment or administrative body not making related administrative punishment applied by people. In Taiwan, began from the Provisional Constitution of the Republic of China, it became the major basic right for people to fight against the harm of public power by the state （the administrative body）. In 1930, the petition law set up the two-tier system of first petition and second petition, and the latter was repealed in 1988 amendment, leaving the one tier of petition now. Moreover, in the new amendment, there are clear explanation of its nature, the strength of its function and the binding of related decision. However, there are still some improper rules due to time pasting or the improvement of other related rules needing amendment in the current law. Filing to petition jurisdiction organ, delegate authorities being the petition jurisdiction organs, as well as some other points may all be its future amendment directions. For common petition and petition participation, major amendment is also in need. While for the existence of the petition system, besides referring to Germany and Japan, the uniqueness of the system in Taiwan should also be taken into consideration.
出处
《行政法学研究》
CSSCI
北大核心
2015年第3期35-61,共27页
ADMINISTRATIVE LAW REVIEW
