Author: Anonymous
The reference to the relevant provisions of the Civil Procedure Law in Taiwan Province is more clear than that in mainland China. The mainland only stipulates in principle in Article 114 of the Judicial Interpretation of the Supreme People's Court: "In handling administrative cases, the people's courts may refer to the relevant provisions of the Civil Procedure Law unless they are in accordance with the provisions of the Administrative Procedure Law." In fact, it is uncertain which provisions of the civil procedure law can be referenced in each specific step of the administrative procedure. 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 shortcomings of the administrative procedure law. Because the cited provisions are not clear, these provisions have not become an organic part of the administrative procedure law. Comparatively speaking, the Taiwan Province Administrative Procedure Law lists all the provisions of the civil procedure law that can be cited for each specific procedure in administrative proceedings, which is convenient for operation, thus making these provisions an integral part of the administrative procedure law.
iii. differences in administrative litigation system and administrative litigation law structure between mainland China and Taiwan Province
1. differences in administrative litigation system between mainland China and Taiwan Province
at present, there are two typical administrative litigation systems, which are also called unitary system and dual system of administrative litigation. Monism, also known as merger, is represented by Britain and America. Dualism is separatism, represented by civil law countries such as France, Germany and Austria. The administrative litigation system in Taiwan 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 what is more unique is that it and ordinary courts belong to the "judicial court"). And the administrative litigation will be changed from the previous first-instance to two-instance and two-instance. This is not only to meet the needs of the development of the times, (note: during the period when the Kuomintang regime occupied the mainland, the number of administrative cases was very small. During the fifteen years from 1933 to 1947, the Executive Yuan accepted less than 48 cases annually, with only two cases in the least year and 82 cases at the most. Therefore, it is sufficient to set up only the central administrative court. After the Kuomintang government came to Taiwan Province, it continued to use the old administrative litigation system, and the first-instance system only exposed its shortcomings in the past twenty or thirty years. The data is quoted from Administrative Relief and Administrative Law (I), p. 313. ) is also to further give full relief to the parties. Of course, this is also closely related to the vigorous promotion of administrative law scholars in Taiwan Province. The administrative litigation system in mainland China belongs to merger doctrine, that is, monism. Both administrative cases and ordinary cases are under the jurisdiction of ordinary courts. But what is more unique is that there is an administrative tribunal in the ordinary court, which is responsible for the trial of administrative cases. Although some scholars in mainland China have called for the establishment of an independent administrative court [1], it is very difficult in the current situation. There are four levels of ordinary courts in mainland China, which are also the system of final adjudication by two trials, and there is a problem of hierarchical jurisdiction (the administrative court in Taiwan Province has two levels, and the first instance is under the jurisdiction of the higher administrative court, so there is no problem of hierarchical jurisdiction).
the Taiwan Province district administrative court is subordinate to the judicial court, and the judges of the judicial 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 laws are unconstitutional, it may order to stop the proceedings and request the meeting of judges to explain. Mainland judges have no right to review the violation of the Constitution, and when Article 53 stipulates that there are contradictions between administrative rules and regulations, they may appeal to the State Council for a ruling. This provision is regarded by scholars as the most discordant note in the mainland administrative procedure law.
2. There are differences in the structure of administrative procedure law between mainland China and Taiwan Province
The structure of administrative procedure law in mainland China is similar to that of civil procedure law in mainland China, which is divided into 11 chapters, including general provisions, scope of accepting cases, jurisdiction, participants in litigation, evidence, prosecution and acceptance, trial and judgment, execution, tort liability, foreign-related administrative litigation and supplementary provisions.
the rules of administrative litigation in Taiwan Province are divided into 9 parts: general rules, first instance procedure of higher administrative court, appeal procedure, protest procedure, retrial procedure, retrial procedure, preservation procedure, enforcement procedure and supplementary provisions.
the administrative procedure law system in Taiwan Province is structured by different trial levels and different trial procedures. 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 procedure 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 unique features of the administrative procedure law in Taiwan Province are: reconciliation in the usual procedure of first instance, summary procedure of first instance, protest procedure, retrial and so on.
although there are general provisions in the administrative procedure law of mainland China, its content is not like that of the general provisions of the administrative procedure law of Taiwan Province, which contains all norms that are different from the procedures of first instance, second instance and retrial. In fact, there are only three parts in the general principles of administrative litigation in mainland China, 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 mainland administrative procedure law are essentially the program of the law, and there are obvious differences in the understanding of the general principles between the two sides.
iv. differences in legislative purposes of administrative procedure law between mainland China and Taiwan Province
the legislative purposes of administrative procedure law in mainland China and Taiwan Province are concisely summarized in article 1 of the general provisions. The administrative procedure law of the mainland states that its purpose is: "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, this law is formulated in accordance with the Constitution." According to this regulation, the legislator gives the administrative procedure law a distinct color of power control. This is also in line with the mainstream thought of administrative law in mainland China, that is, both the control theory and the balance theory believe 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 Procedure Law of Taiwan Province region points out that its purpose is: "The purpose of administrative litigation is to protect people's rights and interests, ensure the legitimate exercise of state administrative power, and enhance judicial functions." In contrast, the lack of the word "supervision" makes the power of control lighter, and more emphasis is placed on the balanced development of the role of administrative litigation law, which not only guarantees the effective operation of administrative power, but also pays attention to safeguarding the legitimate rights and interests of the people. However, the phrase "enhancing judicial function" is added. Its inclusion in the general provisions reflects that Taiwan Province's administrative litigation legislation pays attention to its judicial operability.
In short, the legislative purposes of the administrative procedure law in mainland China and Taiwan Province seem to be similar, but there are great differences in fact, which will have a great impact on the future provisions.
V. Differences in the scope of accepting cases in administrative litigation between mainland China and Taiwan Province
1. The scope of accepting cases is determined in different ways
The scope of accepting cases is determined in a general way in the Administrative Procedure Law of Taiwan Province. Article 2 stipulates that administrative proceedings may be brought in accordance with this law for disputes in public law, unless otherwise provided by law. And deal with two special situations, that is, article 9 stipulates that people whose own 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 the administrative court (these are also disputes in public law).
the scope of accepting cases in the administrative procedure law of mainland China is combined, that is, it is stipulated in a general way in Article 2 of the law, and listed in Article 11 of the law (the content is listed first, then the law is listed, and finally the specific exclusion is listed in Article 12 of the law).
2. The scope of accepting cases is different
The mainland administrative procedure law stipulates that citizens, legal persons or other organizations have the right to bring a lawsuit in accordance with this law when they think that the specific administrative acts of administrative organs and their staff infringe upon their legitimate rights and interests. Here, it requires that firstly, it should be the specific administrative act of the administrative organ, 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. Thirdly, 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 virtually excluded. Moreover, the legal basis is not clear as to whether the lawsuit brought against non-administrative public legal persons, such as public schools and public hospitals, can be accepted when they exercise their functions and powers to infringe upon the legitimate rights and interests of citizens, legal persons and other organizations.
The scope of administrative litigation in Taiwan Province is much wider than that in mainland China, and it is believed that all disputes in public law can be brought to court. Some scholars in Taiwan Province define public law as a law to regulate public power. The scope of disputes caused by it is obviously much larger than that caused by the exercise of administrative power. (The Taiwan Province Administrative Procedure Law stipulates that litigation can also be brought against public law contract disputes and election disputes. Even the lawsuit brought by the people whose interests are not infringed on the disputes in public law can be accepted in some cases. )
mainland China does not recognize the division of public and private laws, so it is obviously inappropriate to define the scope of accepting cases as a dispute in public law in the administrative procedure law. However, the shortcomings of the mixed mode of accepting cases in mainland China's administrative procedure law are also very obvious. As the scholar Guan Ou in Taiwan Province said: "The advantage of enumerationism is that it is clearly defined, preventing excessive complaints and eliminating disturbances. However, with the increasing number of new social undertakings and complicated administrative matters, it is inevitable that the list will be omitted and unable to adapt to the administrative matters that do not change. If it is not within the scope of the list, the rights suffered by illegal acts will be damaged, that is, the remedies that cannot be determined. As for generalizism, its gains and losses are contrary to enumerationism. As far as the trend of administrative litigation system and the situation of legal thought and social progress are concerned, it tends to generalize from enumerationism. " Swiss public law scholar Luke believes that enumerationism is a transitional means to reach generalization in administrative litigation. In fact, the administrative litigation law in Taiwan Province has also been constantly broken through the judicial organs from enumerationism. For example, in the early days, both the judicial court and the administrative court believed that the relationship between civil servants and the state was a special power relationship, and civil servants were not allowed to file administrative lawsuits against the punishment they received in their identity. However, after repeated explanations by the Chief Justice, civil servants had to file administrative lawsuits for the disputes over property rights in public law, as well as the dismissal punishment or the points that had a significant impact on their identity, which eventually led to the transition from enumerationism to generalization. In fact, the judicial practice of administrative litigation in mainland China is constantly breaking through the boundaries given by enumerationism. It is a historical necessity to move towards generalization.
furthermore, abstract administrative actions should eventually be included in the scope of administrative litigation. At present, Britain and the United States and other countries have conditionally brought it into the scope of administrative litigation. Taiwan Province has actually brought it into the scope of administrative litigation because of its generalization, but the mainland has some gaps in this respect.
VI. The provisions on the jurisdiction of administrative litigation in mainland China and Taiwan Province are different
Because of the vast territory and the four-level courts in mainland China, its jurisdiction is more complicated. It can be divided into hierarchical jurisdiction, regional jurisdiction and ruling jurisdiction. Territorial jurisdiction applies the principle that the plaintiff is the defendant, but it also stipulates several special territorial jurisdictions, mainly including: if the reconsideration organ changes the original specific administrative act, the plaintiff shall choose to be under the jurisdiction of the people's court where the administrative organ originally made the specific administrative act or the people's court where the reconsideration organ is located; A lawsuit filed against an administrative compulsory measure restricting personal freedom shall be under the jurisdiction of the people's court where the defendant is located or where the plaintiff is located. From the above provisions, we can see that the mainland administrative procedure law pays special attention to the protection of citizens' rights and highlights its function of controlling and supervising the effective exercise of administrative power.
Administrative litigation in Taiwan Province is a two-level and two-trial system, and the first instance is under the jurisdiction of the Higher Administrative Court, so there is no question of hierarchical jurisdiction, and the principle of plaintiff versus defendant is generally applied to regional jurisdiction. Although it is simpler than mainland China, its protection of civil rights and supervision and control of administrative power are obviously not as great as mainland China's administrative procedure law. Probably because it is deeply influenced by the civil law system.
VII. Differences in the system of participants in administrative litigation between mainland China and Taiwan Province
1. Differences in plaintiff's qualifications
The administrative litigation law of mainland China places strict restrictions on plaintiff's qualifications. The plaintiff can only be an administrative counterpart who believes that his own legitimate personal rights and property rights and interests have been infringed by specific administrative actions of administrative organs. In administrative proceedings, the administrative subject can only be the defendant.
The plaintiff's qualification in administrative litigation in Taiwan Province area is different according to different lawsuits. The plaintiff in the action of revocation and the action 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 their rights and interests are infringed. For example, Article 9 of the Administrative Procedure Law of Taiwan Province stipulates that in order to safeguard public welfare, people may bring administrative proceedings against illegal acts of administrative organs for matters that have nothing to do with their rights and legal interests, but only to the extent specified by law. Article 25. An association legal person with the purpose of public welfare, within the scope of the purpose specified in its articles of association, is granted a certain legal relationship by a majority of members with the same interests, and can bring a lawsuit for the public interest (in this case, the association legal person in mainland China has no plaintiff qualification). It can be seen that the current administrative litigation law in Taiwan Province has made a major breakthrough in the scope of protection of administrative litigation interests, and gradually incorporated some reflected 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 are specifically infringed by administration may not bring administrative litigation, legislators recognize the qualification of public welfare organizations as the subject of litigation and allow them to bring administrative litigation for their members or the broader and 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 the plaintiff's eligibility. The conditions for qualified plaintiffs in mainland administrative litigation should be lowered to ensure people's full realization of litigation rights.
2. There are differences in the conditions of qualified defendants
In mainland China, when the entrusted organ or individual infringes on 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 qualified defendant and the entrusted organization or individual as the third party when bringing an administrative lawsuit.
In Taiwan Province, if people and organizations or individuals entrusted with the exercise of public power are involved in litigation due to entrusted events, the entrusted organizations or individuals are the defendants, unlike the entrusted organs in mainland China.
3. Differences in the qualifications of agents ad litem
According to the Administrative Procedure Law of Taiwan Province, in addition to lawyers, those who have obtained the qualifications of agents ad litem in litigation events, those who are agents ad litem by virtue of their positions and those who are related to the parties can be agents ad litem.
the mainland administrative procedure law stipulates that lawyers, social organizations, close relatives of citizens who file lawsuits or people recommended by their units and other citizens with the permission of the people's courts may be entrusted as agents ad litem. Comparatively speaking, the range of agents ad litem available is much larger than that in Taiwan Province.
In addition, in mainland China, lawyers as agents ad litem are given some rights superior to other agents ad litem in administrative litigation. If you can consult the relevant materials of this case in accordance with the regulations, you can investigate and collect evidence from relevant organizations or citizens. The exercise of the above rights by the general parties requires the approval of the people's court, and they are not allowed to consult the contents involving state secrets and personal privacy. Taiwan Province's administrative litigation law does not grant lawyers as litigation agents.