Accessibility as a Subjective Public Right: Introspection on Four Criteria in the Judicial Yuan Interpretation No. 469
Date Issued
2015
Date
2015
Author(s)
Chou, Ya-Chien
Abstract
When the facilities or the constructions of the public entities are not accessible to persons of disabilities, there is a violation of the Disabilities Right Protection Law (hereinafter DRPL). However, the Supreme Court denied that persons of disabilities have standing to sue the public entities for constructing, accommodating, modifying, or adjusting the public facilities or constructions, since persons of disabilities don’t have the subjective public right of accessibility in DRPL. Considering that the Implementation Act of the Convention on the Rights of Persons with Disabilities (hereinafter CRPD) came into force in 2014, this thesis attempts to analyze how CRPD and its spirit take effect on the rights of persons of disabilities, especially the subjective public right of accessibility. This thesis uses neue Schutznormtheorie and the Four Criteria provided in the Judicial Yuan Interpretation No. 469 as foundations to discuss how administrative court should use the aforesaid theory, Four Criteria and CRPD to make legal interpretation so as to recognize the existence of subjective public right of accessibility. In the aforesaid context, this thesis not only focuses on R.O.C. legal system, but also looks into the U.S. and Germany legal systems, and then makes introspection on the following issues: Who constitutes “disabilities”? What does “accessibility” mean? How does the welfare system or antidiscrimination system make effect on judicial system and the efficiency to sue for accessibility? Base on discussion of those questions, this thesis concludes that persons of disabilities shall have standing in administrative litigations when their subjective public rights of accessibility are violated.
Subjects
Accessibility
Schutznormtheorie
Subjective public right
Antidiscrimination
Reasonable accommodation
Convention on the Rights of Persons with Disabilities
Legal interpretation conforming with the spirit of international human right law
SDGs
Type
thesis
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