A study of Informal Administrative Adjudication Procedure -cases and legal analysis-
Date Issued
2010
Date
2010
Author(s)
Yung-Chuan, Lai
Abstract
This paper first introduces overall status of “Representation” and finds out common characteristics by observing and comparing related provisions of Germany, Japan, the United States and Taiwan so as to initially find out profile of “statement of opinions” and the important points. The above summary and analysis indicates that this system consists of the following parts: “when opportunity shall be given to state opinions”; “procedure of stating opinions” and “consequences of violating the procedure”.
First, as for “when opportunity shall be given to state opinions”, Statute adopts the method of “principle-exception”, before making an unfavorable decision, administrative authorities shall in principle give the people the opportunity to state opinions and don’t have to give such opportunity in exceptional cases. However, too many exceptions will render the principle inapplicable.
Secondly, “procedure of stating opinions” is closely related to actual statement of opinions. For actually realizing purposes of representation, the minimum requirements about procedure shall be “prior notice”; “reading case files”; “statement of opinions”; “duty to give reasons”. The important task here is to reflect on procedure design which plays a significant role in development of the system.
Finally, process control needs to be described together with “consequences of violating the procedure”. In Taiwan, breach of procedure is caused by the view that violating procedure can correct and remove the defects. It is really questionable because it may make administrative authorities attach less importance to obedience of procedure.
From the above three subjects, the study try to find out problems from the provisions of the Administrative Procedural Law (Articles 102~106) and its practical operation (administrative and judicial), hope to put forward appropriate and viable suggestions on the related problems by virtue of theories or viewpoints of foreign laws.
Subjects
administerative procedure
representation
administerative adjudication
procedure of stating opinions
consequences of violating the procedure
Type
thesis
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