Author: anonymous
The administrative procedure law of Taiwan Province Province refers to the relevant provisions of the civil procedure law more clearly than that of the mainland. The mainland only stipulates in principle in Article 1 14 of the Judicial Interpretation of the Supreme People's Court: "In trying administrative cases, the people's courts may refer to the relevant provisions of the Civil Procedure Law, except as provided for in this Law." In fact, in every specific step of the administrative procedure, we can refer to which provisions of the Civil Procedure Law are uncertain. It can be seen that the mainland's reference to the provisions of the Civil Procedure Law is actually a means to make up for the lack of administrative procedure law. Because the quoted clauses are not clear, these clauses have not become an organic part of the administrative procedure law. Comparatively speaking, the Administrative Procedure Law of Taiwan Province Province lists all the provisions of the civil procedure law that can be invoked in each specific procedure in administrative litigation, which is convenient for operation, thus making these provisions an integral part of the Administrative Procedure Law.
Three, the mainland and Taiwan Province administrative litigation system and administrative litigation legal structure differences.
1. Differences in administrative litigation systems between Chinese mainland and Taiwan Province.
At present, there are two typical administrative litigation systems, also known as monism and dualism of administrative litigation. Monism, also known as merger, is represented by Britain and America. Dualism is separatism, represented by France, Germany, Austria and other civil law countries. The administrative litigation system in Taiwan Province Province is a typical separatism. Administrative litigation cases are under the jurisdiction of the High Administrative Court and the Supreme Administrative Court. The administrative court is independent of other ordinary courts (but more uniquely, it belongs to the "judicial court" with ordinary courts). And the administrative litigation was changed from the previous first instance to two trials. This is not only to meet the needs of the development of the times, (note: during the occupation of the mainland by the Kuomintang regime, the number of administrative cases was very small. During the period from 1933 to 1947 and 15, the Executive Yuan accepted less than 48 cases every year, with at least 2 cases a year and 82 cases at most. Therefore, it is enough to set up only the central administrative court. After the Kuomintang government came to Taiwan Province Province, it continued to use the old administrative litigation system. The first-instance system only exposed the shortcomings in the past 20 or 30 years. The data is quoted from Administrative Relief and Administrative Law (I), page 3 13. ) is also to further give the parties sufficient relief. Of course, this is also closely related to the vigorous promotion of administrative law scholars in Taiwan Province Province. Chinese mainland's administrative litigation system belongs to merger doctrine, that is, monism. Both administrative cases and ordinary cases are under the jurisdiction of ordinary courts. But what is unique is that there is an administrative tribunal in ordinary courts, which is responsible for hearing administrative cases. Although some scholars in Chinese mainland call for the establishment of an independent administrative court [1], it is very difficult under the current circumstances. There are four levels of ordinary courts in Chinese mainland, which are also the final adjudication system of two trials, so there is a problem of hierarchical jurisdiction (there are two levels of administrative courts in Taiwan Province Province, and the first instance is under the jurisdiction of higher administrative courts, so there is no problem of hierarchical jurisdiction).
The local administrative court of Taiwan Province Province belongs to the trial court, and the judges of the trial court have the right to review the violation of the constitution. Therefore, Article 252 of its Administrative Procedure Law stipulates that when the Supreme Administrative Court is convinced that the applicable law is unconstitutional, it can order the suspension of the proceedings and ask the judges' meeting to make an explanation. Mainland judges have no right to examine whether it is unconstitutional, but when the provisions of Article 53 are in conflict with administrative regulations, they can refer them to the State Council for a ruling. This provision is regarded by scholars as the most discordant note in mainland administrative litigation law.
2. There are differences in the structure of administrative procedure law between Chinese mainland and Taiwan Province.
The structure of Chinese mainland's administrative procedure law is similar to that of Chinese mainland's civil procedure law, which is divided into general principles, scope of accepting cases, jurisdiction, litigants, evidence, prosecution and acceptance, trial and judgment, execution, tort liability, foreign-related administrative litigation and supplementary provisions. * * * 1 1 section.
The rules of administrative litigation in Taiwan Province Province are divided into nine parts: general rules, first instance procedure of higher administrative court, appeal procedure, protest procedure, retrial procedure, retrial procedure, preservation procedure, compulsory execution procedure and supplementary provisions.
In Taiwan Province, different levels and different natures of trial procedures constitute the system of administrative procedure law. The scope of accepting cases, jurisdiction, parties and different litigation procedures, such as service, parties' pleadings, period, litigation files and litigation costs, are all included in the General Provisions. This is concise and easy to operate.
In addition, on the whole, the administrative litigation laws of both sides have contents that the other side does not have. The unique contents of the mainland administrative procedure law include: tort liability, foreign-related administrative litigation, and the principles that should be followed in the trial of administrative cases in the general provisions. The uniqueness of the administrative procedure law in Taiwan Province lies in the reconciliation, summary procedure, protest procedure, retrial procedure and so on.
Although Chinese mainland has the general principles of administrative procedure law, its content does not include all norms different from those of first instance, second instance and retrial procedure, as the general principles of administrative procedure law in Taiwan Province. In fact, there are only three general principles of administrative litigation in Chinese mainland, namely, the purpose of administrative litigation, the scope of accepting cases and the principles of administrative litigation. It can be seen that the general principles of the administrative procedure law in mainland China are essentially legal procedures, and there are obvious differences in the understanding of the general principles between the two sides.
Fourthly, the differences between mainland China and Taiwan Province in the legislative purpose of administrative procedure law.
The administrative procedure law of Chinese mainland and Taiwan Province in China briefly summarizes the legislative purpose in the first general clause. The Administrative Procedure Law of the Mainland stipulates that its purpose is: "This Law is formulated in accordance with the Constitution in order to ensure that the people's courts correctly and promptly hear administrative cases, protect the legitimate rights and interests of citizens, legal persons and other organizations, and safeguard and supervise the administrative organs to exercise their functions and powers." According to this provision, legislators give the administrative procedure law a distinct color of power control. This is also in line with the mainstream thought of Chinese mainland's administrative law, that is, cybernetics and balance theory all think that the main function of administrative procedure law is to control and supervise the effective exercise of administrative power. Because of this, the promulgation of the Administrative Procedure Law has a milestone significance in creating a new situation of democracy and rule of law in China in the development of China administrative law and even the whole law. The Administrative Litigation Law of Taiwan Province Province points out that its purpose is: "The purpose of administrative litigation is to protect people's rights and interests, safeguard the legitimate exercise of state administrative power and enhance judicial functions." In contrast, without the word "supervision", the control power is lighter, and the balanced development of the role of administrative procedure law is emphasized, which not only ensures the effective operation of administrative power, but also pays attention to safeguarding the legitimate rights and interests of the people. However, the phrase "strengthening judicial functions" was added. Incorporating it into the general principles shows that Taiwan Province's administrative litigation legislation pays attention to its judicial operability.
In a word, the legislative purposes of administrative litigation law in Chinese mainland and Taiwan Province seem to be similar, but in fact there are great differences, which have a great influence on the later provisions.
Verb (abbreviation of verb) The difference of accepting cases in administrative litigation between Chinese mainland and Taiwan Province.
1. The scope of accepting cases is determined in different ways.
The scope of accepting cases is generally determined by the Administrative Procedure Law of Taiwan Province Province. Article 2 stipulates that unless otherwise provided by law, administrative proceedings may be brought against public law disputes according to this Law. And deal with two special situations, that is, Article 9 stipulates that people whose interests have not been infringed can accept lawsuits filed for safeguarding public welfare. It also stipulates that disputes over election and recall shall be accepted by administrative courts (these are also disputes in public law).
The scope of accepting cases in the administrative procedure law of the mainland adopts a combination method, that is, it is stipulated in the general form in Article 2 of the law and listed in Article 1 1 (the content is listed first, then the law is listed, and finally the specific exclusion list is made in Article 12 of the law).
2. The scope of accepting cases is different
According to the Administrative Procedure Law of the Mainland, citizens, legal persons or other organizations have the right to bring a lawsuit in accordance with this Law if they think that a specific administrative act of an administrative organ or its staff infringes upon their legitimate rights and interests. The requirement here should be the specific administrative act of the administrative organ first, while the abstract administrative act is excluded from the scope of accepting cases. Secondly, only those whose rights and interests have been infringed have the right to sue. Third, the Supreme People's Court's judicial interpretation limits "legitimate rights and interests" to personal rights and property rights, while political rights and the right to education are actually excluded. Moreover, the legal basis is not clear whether the lawsuits brought by non-administrative public legal persons such as public schools and public hospitals that infringe upon the legitimate rights and interests of citizens, legal persons and other organizations can be accepted.
The scope of administrative litigation in Taiwan Province Province is much wider than that in Chinese mainland, and it is believed that all disputes in public law can be brought to court. Some scholars in Taiwan Province Province define public law as a law regulating public power. The scope of disputes caused by it is obviously much larger than that caused by the exercise of administrative power. (The Administrative Procedure Law of Taiwan Province Province stipulates that public law contract disputes and election disputes can also be litigated. Even a lawsuit brought by a person whose interests have not been infringed on is acceptable in some cases. )
Mainland China does not recognize the division between public law and private law, so it is obviously inappropriate to define the scope of accepting cases as disputes in public law in the administrative procedure law. However, the defects of the mixed acceptance mode of Chinese mainland Administrative Procedure Law are also very obvious. As Guan Ou, a scholar in Taiwan Province Province, said: "The advantage of enumerationism is that it is clearly defined, which can prevent excessive complaints and eliminate interference. However, with the increasing number of new social undertakings and complex administrative matters, it is inevitable that the list will be omitted and it will not be able to adapt to the unchanged administrative matters. If it is not within the scope of the list, the rights suffered by the illegal act will be damaged, that is, the remedies that cannot be determined. As for generalizability, its gains and losses are contrary to enumerationism. As far as the trend of administrative litigation system, legal thought and social progress are concerned, it tends to be generalized from enumerationism. " Luke, a Swiss public law scholar, believes that enumerationism is a transitional means to reach generalization in administrative litigation. In fact, the administrative litigation law of Taiwan Province Province has been constantly broken through by judicial organs from enumerationism. For example, the early judicial courts and administrative courts all believed that the relationship between civil servants and the state was a special power relationship, and civil servants were not allowed to file administrative proceedings against the punishment they received in their identity. However, after repeated explanations by the Chief Justice, civil servants have to file administrative proceedings for disputes over property rights in public law, as well as dismissal or deduction of points that have a great impact on their identity, which eventually led to the change from enumerationism to generalization. In fact, the judicial practice of administrative litigation in Chinese mainland is constantly breaking through the boundaries given by enumerationism. It is a historical necessity to move towards universality.
Furthermore, abstract administrative acts should eventually be included in the scope of administrative litigation. At present, countries such as Britain and the United States have conditionally brought it into the scope of administrative litigation. Because of its generalization, Taiwan Province Province has actually brought it into the scope of administrative litigation, but the mainland has a gap in this respect.
Six, the mainland and Taiwan Province Province have different provisions on the jurisdiction of administrative litigation.
Because Chinese mainland has a vast territory and four courts, its jurisdiction is more complicated. It can be divided into hierarchical jurisdiction, regional jurisdiction and adjudication jurisdiction. The principle that the plaintiff is the defendant applies to the territorial jurisdiction, but it also stipulates several special territorial jurisdictions, mainly including: if the reconsideration organ changes the original specific administrative act, the plaintiff chooses to be under the jurisdiction of the people's court where the administrative organ that originally made the specific administrative act or the people's court where the reconsideration organ is located; A lawsuit brought against an administrative compulsory measure that restricts personal freedom shall be under the jurisdiction of the people's court where the defendant is located or where the plaintiff is located. As can be seen from the above provisions, the mainland administrative procedure law pays special attention to the protection of citizens' rights, and highlights the control and supervision functions for the effective exercise of administrative power.
The administrative litigation in Taiwan Province Province is a two-level and two-trial system. The first trial is under the jurisdiction of the Higher Administrative Court, so there is no problem of hierarchical jurisdiction. Generally, the principle of plaintiff's jurisdiction over defendant is applied. Although it is simpler than Chinese mainland, its protection of civil rights and supervision and control of administrative power are obviously not as big as Chinese mainland's administrative procedure law. Probably because it is deeply influenced by the civil law system.
Seven, the difference between the mainland and Taiwan Province province administrative litigation participant system.
1. Differences in plaintiff qualifications
The administrative litigation law of the mainland has strict restrictions on the plaintiff's qualification. The plaintiff can only be an administrative counterpart who thinks that his legal personal rights and property rights have been infringed by the specific administrative actions of the administrative organs. In administrative litigation, the administrative subject can only be the defendant.
The qualification of plaintiff in administrative litigation in Taiwan Province varies with different types of litigation. The plaintiff in the lawsuit of revocation and the lawsuit of requesting punishment can only be the administrative counterpart. The plaintiff of the action of confirmation and the action of payment can be the administrative counterpart or the administrative subject. This is very different from the mainland administrative procedure law. What is particularly unique is that in some cases, administrative litigation is not based on the premise that one's own rights and interests are infringed. For example, Article 9 of the Administrative Procedure Law of Taiwan Province Province stipulates that in order to safeguard public welfare, people may bring administrative proceedings against illegal acts of administrative organs on matters unrelated to their rights and legitimate interests, but only within the scope prescribed by law. Article 25. An association legal person with the purpose of public welfare is granted certain legal relationship by most members with the same interests within the scope of the purpose stipulated in its articles of association, and can bring a lawsuit for public welfare (in this case, an association legal person in Chinese mainland has no plaintiff qualification). It can be seen that the current administrative litigation law in Taiwan Province Province has made a major breakthrough in the scope of protection of administrative litigation interests, and gradually brought some reflective interests and factual interests into the scope of litigation interests, and these interests are not limited to a specific individual, but can be the common interests of the public. Considering that individuals who have been specifically infringed by administration are not allowed to bring administrative proceedings, legislators recognize the qualification of non-profit organizations as the subject of litigation and allow them to bring administrative proceedings for their members or for the wider and more abstract group interests in society. This is also a major breakthrough, and it is also conducive to better supervising the legitimate exercise of functions and powers by administrative organs.
In contrast, the conditions for qualified plaintiffs in mainland administrative litigation are too harsh. As Wade pointed out, it is harmful to the healthy development of administrative law to adopt restrictive provisions on plaintiff qualification. The qualification of plaintiff in mainland administrative litigation should be lowered to ensure that people can fully realize their litigation rights.
2. There are different conditions for qualified defendants.
In Chinese mainland, when the entrusted organ or individual infringes upon the legitimate rights and interests of the counterpart by exercising the entrusted functions and powers, the administrative counterpart takes the original administrative organ as the appropriate defendant, and the entrusted organization or individual brings an administrative lawsuit for the third party.
In Taiwan Province Province, if a person, organization or individual entrusted to exercise public power is involved in a lawsuit because of the entrusted event, the entrusted organization or individual is the defendant, unlike the mainland where the entrusted organ is the defendant.
3. Differences in the qualifications of agents ad litem
According to the Administrative Procedure Law of Taiwan Province Province, in addition to lawyers, people who have obtained the qualification of agent ad litem according to law, people who act as agents ad litem because of their positions, and people who are interested in the parties can act as agents ad litem.
The Administrative Procedure Law of the Mainland stipulates that lawyers, social organizations, close relatives of citizens who file lawsuits, persons recommended by their units and other citizens approved by the people's courts may be entrusted as agents ad litem. Comparatively speaking, the scope of agent ad litem is much larger than that of Taiwan Province Province.
In addition, in Chinese mainland, lawyers, as agents ad litem, are endowed with some rights superior to other agents ad litem in administrative litigation. If you can consult the relevant materials of this case according to the regulations, you can investigate and collect evidence from relevant organizations or citizens. The exercise of the above rights by the general parties shall be approved by the people's court and shall not refer to the contents involving state secrets and personal privacy. The Administrative Procedure Law of Taiwan Province Province does not give lawyers the right to be superior to other litigation agents as litigation agents.
4. The litigation rights of the parties are different.
The administrative litigation law of Taiwan Province Province gives the litigants more litigation rights than the mainland, and the litigants' litigation rights are not only equal, but also approximately equal. For example, in some cases, the plaintiff has the right to sue and the defendant has the right to counterclaim. In some cases, the plaintiff's right to withdraw the lawsuit should also be negotiated with the defendant, and even in some cases, the two sides can agree to stop the lawsuit. On the other hand, Chinese mainland's administrative litigation law has strong control, and it essentially pursues the equality of litigant rights. In order to ensure the effective exercise of the plaintiff's litigation rights, some restrictions are often imposed on the litigation rights of the defendant as the administrative subject, such as not collecting evidence by himself and having to bear the burden of proof. It can be seen that the legislative idea of the Administrative Procedure Law of mainland China is still superior to the current Administrative Procedure Law of Taiwan Province Province.
Eight, the mainland and Taiwan Province province administrative litigation law in the pre-procedure differences.
In Chinese mainland, the pre-procedure of administrative litigation is complicated, and the way of free choice is adopted, supplemented by compulsory first. Which administrative cases need reconsideration shall be stipulated by specific laws.
The Administrative Procedure Law of Taiwan Province Province has relatively simple provisions on the pre-procedure of administrative litigation, which divides administrative litigation into revocation litigation, payment litigation and confirmation litigation. For the withdrawal of the lawsuit, it needs to go through the appeal procedure, that is, the reconsideration procedure. Although it is not explicitly stated in the confirmation proceedings that it is necessary to apply in advance, it is actually required to apply in advance. In practice, the action of payment is often closely related to the action of confirmation or cancellation, so it can be considered that the basic principle of administrative litigation in Taiwan Province Province is pre-litigation. This is related to the fact that the administrative law in Taiwan Province is deeply influenced by the tradition of administrative relief system in continental law system. At present, there are two diametrically opposed opinions on the pre-litigation procedure: agreeing with the pre-litigation procedure is more conducive to respecting administrative power and maintaining administrative unity, while filtering and eliminating the petition procedure will greatly reduce the burden on the court. From the perspective of the whole relief system, this setting is also convenient to help people clarify doubts, expand relief opportunities and speed up relief procedures. Opponents believe that there is a difference between pre-coercion and administrative selectivity and arbitrariness in listing letters and visits as the first procedure of administrative litigation. The petition system is becoming more and more perfect, which makes it coexist with the administrative litigation system, which is inappropriate [2]? It is advocated to replace the first compulsion with the doctrine of preferential selection, so that the appeal becomes an administrative relief system alongside administrative litigation and letters and visits. Some scholars have also suggested that in some cases, illegal punishment can directly bring administrative proceedings without appeal or re-appeal procedures.
At present, the theory of calling for independent choice has become the mainstream of all countries in the world. Even France, a typical civil law country, adopts voluntary selectivity in principle. In the German administrative procedure law, unless otherwise stipulated by law, the confirmation litigation, general payment litigation, cancellation litigation or obligation litigation of the highest federal organ or the highest federal authority all adopt direct litigation. The mainland administrative procedure law fully respects the independent will of the parties. In contrast, the relevant provisions of the current administrative procedure law in Taiwan Province Province are too conservative, but compared with the 1975 version of the "two-level appeal and one-level litigation" system and "pre-appeal doctrine", it is undoubtedly progressive. Obviously, the administrative procedure laws in Chinese mainland and Taiwan Province should be further developed on this issue.
Nine, the difference of evidence system
1. Difference of burden of proof
In mainland administrative litigation, the defendant bears the burden of proof. In the course of litigation, the administrative subject should prove the facts and legal reasons for his administrative act. (When the people's court deems it necessary, it may collect evidence by itself. )
The administrative litigation in Taiwan Province Province follows the principle of authoritarianism (Note: In fact, before the promulgation of the current administrative litigation law, there was no provision on the burden of proof in the administrative litigation law of Taiwan Province Province. Basically, the burden of proof can only be determined in accordance with the civil procedure law. However, in judicial practice, the defendant also bears the burden of proof. See [Taiwan] Chen Qingxiu: Theory and Practice of Administrative Litigation, Sanmin Publishing House, August 1994, p. 3 16. ) that is, the administrative court is fully responsible for collecting and clarifying the important legal facts on which the litigation relationship is based. Article 125 of the Administrative Procedure Law of Taiwan Province Province stipulates that the administrative court shall investigate the factual relationship according to its functions and powers and shall not be bound by the litigant's claims. Article 133 stipulates that when an administrative court cancels a lawsuit, it shall investigate the procedure according to its functions and powers, and the same applies to other lawsuits that safeguard public interests. Article 134: Although the matters claimed by the parties have been made by others, the administrative court shall still investigate other necessary evidence. Even when people can't prove their claims and need to rely on the authority of the court, they can also request the court to investigate evidence according to their functions and powers to safeguard human rights. Although the original intention of authoritarianism is to better mobilize evidence, its effect is obviously not as good as that of the defendant in mainland China.
2. The difference between the witness's responsibility to testify
The mainland regards testimony as the legal obligation of insiders, and any insider has the obligation to testify. The only exception is that when state secrets are involved, the obligation to testify can be exempted. Article 145 of the Administrative Procedure Law of Taiwan Province Province stipulates that a witness may refuse to testify if he is worried that his statement will lead to criminal prosecution or insult to himself or his close relatives. Even if you testify voluntarily, you can't make it swear. Obviously, this is related to the profound influence of western human rights thought.
3. Differences in the scope of witness testimony
In Chinese mainland, witness testimony is limited to the facts related to the case and does not involve legal issues. Legal issues related to the case are proved by the defendant, and the plaintiff can also prove his claim on legal issues.
Article 162 of the procedural law of Taiwan Province Province stipulates that when the administrative court deems it necessary, it may consult the personnel engaged in academic research on the professional legal issues of litigation, and state its legal opinions in writing or on the day of court session. Visible, on legal issues, Taiwan Province Province can require witnesses to testify.
In fact, the mainland has also made breakthroughs in this regard. In some administrative proceedings, judges often accept the opinions of legal experts on legal issues, but they have not been seen in the law.
4. The parties have different time limits for collecting evidence.
There is no time limit for the parties to collect evidence in administrative litigation in Taiwan Province Province. The administrative procedure law of the mainland has strict restrictions on the time for defendants to collect evidence. They may not collect evidence from the plaintiff or the witness himself during the proceedings (Article 33). Its purpose is to more strictly supervise the administrative organs to exercise their functions and powers according to law.
5. Litigants have different ways to deal with the obstruction of obtaining evidence.
In Chinese mainland, the way to deal with participants who obstruct the investigation of evidence is punishment, such as admonition, order to make a statement of repentance, fine, detention, etc. Taiwan Province Province follows the ancient legal principle that "no one can profit from his misconduct" and makes completely different regulations. Article 139 stipulates that if a party intentionally loses or conceals evidence or makes it difficult for the evidence user to use the evidence because it hinders others from using the evidence, the administrative court may, as appropriate, determine that others' claims on the evidence or the facts that should be proved by the evidence are true. This provision is obviously more scientific than the mainland's simple use of punishment.
X. differences in first-instance procedures
There are many differences between Chinese mainland and Taiwan Province in the procedure of first instance. The most obvious thing is that reconciliation can be achieved in the usual first-instance procedure in Taiwan Province Province, and mediation by the administrative court is not excluded. There is also a summary procedure in the first instance of administrative trial in Taiwan Province Province. The reason for this situation is that the legislative purpose of Taiwan Province Administrative Procedure Law is to give the parties sufficient judicial relief, instead of regarding it as a power control law like Chinese mainland. Therefore, summary procedure, reconciliation and mediation are not unacceptable as long as the purpose of giving full judicial relief to the parties can be achieved. Moreover, because it is quick and simple, its advantages in dealing with small public law disputes are particularly obvious. But the disadvantage is that the supervision of the administrative subject is weak. Therefore, it is not appropriate to introduce these systems into China's administrative procedure law. (Note: Because civil law countries emphasize its function of protecting rights, reconciliation procedure is widely used in civil law countries. See Chen Qingxiu: Theory and Practice of Administrative Litigation, Sanmin Publishing House, August 1994, p. 343. Especially today, the awareness of the rule of law in some administrative organs is not very strong.
In addition, the mainland requires judges to follow the principle of "taking facts as the basis and taking law as the criterion" when making judgments. While Taiwan Province follows the principle of judge's free evaluation of evidence. Article 189 of the Administrative Procedure Law stipulates that the administrative court should consider the intention of the whole debate and the results of investigation evidence when making a judgment, and judge whether the facts are true or false according to the reasoning rules and experience. The reasons for evaluating evidence in accordance with the judgment in the preceding paragraph shall be proved in the judgment. Obviously, the mainland's discretion standard of "taking facts as the basis and law as the criterion" is too idealistic, and it is actually difficult to completely achieve it, which is not as scientific as the provision of "free evaluation of evidence by judges" in Taiwan Province Province.