English
* Preface
* History
* A Brief Introduction to Administrative Litigation
* Jurisdiction and Organization
* Trial and Judges
* Trial Procedure
* Facilities and Service
* Concluding Remarks
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A Brief Introduction to Administrative Litigation

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3. A Brief Introduction to Administrative Litigation

3.1 Jurisdiction over Administrative Litigation

Whenever a public law case or controversy occurs between an individual and a government office, adversely affecting an individual’s rights or interests protected by law, he or she may initiate an administrative litigation unless a statute stipulates otherwise. Before initiating an administrative litigation, it is necessary to understand the meanings of three concepts: “an administrative act,” “public-law relationships,” and “rights in public law.”

3.1.1     Administrative acts

An administrative act is a unilateral decision or other public law measure taken by a government office for a specific event in public law that itself causes legal consequences for an individual outside of the government. Examples of administrative acts include tax assessments, the expropriation of land, the issuance of permits, punishment for traffic infractions, or punishment for violations of environmental law.

3.1.2     Public-law relationships

A public-law relationship refers to the right-duty relationship between a government office and an individual as applied to a specific case or event in accordance with legal norms in public law. A right-duty relationship may exist between a person and an object, or between persons, whether they are natural persons or legal persons. Examples of a public-law relationship are easements for roads that have been used over time, the school registration of a student, or the employment of a public servant.

3.1.3     Rights in public law

A right in public law refers to a right held by a person against another person for a specific performance on the basis of a public-law relationship. Examples include receiving compensation for the expropriation of private property, applying for tax refunds, and applying to have land that has been expropriated returned to its previous owner at the specified price.

3.2 Types of Administrative Litigation

The major types of administrative litigation are actions for the revocation of administrative acts, actions to order administrative acts, actions for declaration, and actions to order performance. An individual should choose the appropriate type of litigation on the basis of the contents and nature of the administrative act in question.

3.2.1 Actions for the revocation of administrative acts

An individual who opines that an administrative act (for example, a notice for assessment of taxes) is illegal and harms his or her rights or interests, after seeking redress through the petitions and appeals (suyuan) process to no avail, may initiate an action for the revocation of administrative acts at an administrative court. (Article 4 of the Administrative Litigation Act)

3.2.2 Actions to order administrative acts

When an individual applies to a government office for an administrative act with specific contents (for example, an application for the issuance of a construction permit), when the government office should act within the prescribed period of time but fails to do so, or when it rejects the individual’s application, causing harm to the rights or legal interests of the individual, that individual may bring the case before the petitions and appeals committee. If this action is of no avail, the individual may bring the case before the administrative court to order the government office to render an administrative act with specific contents. (Article 5 of the Administrative Litigation Act)

3.2.3 Actions for declaration

3.2.3.1 Declaring an administrative act invalid

When an individual considers that an administrative act is invalid due to one of the seven circumstances set out in Article 111 of the Administrative Procedure Act and his or her rights or interests are affected, and when that individual has already applied to a government office for declaring the administrative act invalid, but to no avail, he or she can initiate litigation before an administrative court to declare that an administrative act is invalid. (The first half of Article 6, Section 1 of the Administrative Litigation Act)

3.2.3.2 Declaring the existence or non-existence of a public-law relationship

When an individual disagrees with a government office over whether or not a public-law relationship exists (for example, whether an easement for roads exists and whether registration as a student or qualification as a government officer exists), and such disagreement may adversely affect his or her rights or interests, he or she may initiate litigation before an administrative court to declare the existence or non-existence of a public-law relationship. (The first half of Article 6, Section 1 of the Administrative Litigation Act)

3.2.3.3 Declaring illegal an administrative act

When the administrative act that an individual seeks to revoke has already been carried out or ceased to exist for other reasons (for example, a building was considered illegally constructed and therefore was demolished and cannot be restored), as the administrative act has already been carried out, he or she may initiate a litigation before an administrative court to declare the administrative act illegal. (The second half of Article 6, Section 1 of the Administrative Litigation Act)

3.2.4 Actions to order performance other than administrative acts

When, between an individual and a government office, a property transfer occurs (for example, receiving compensation for expropriation), an individual requests that government office perform an act that is neither a property transfer nor an administrative act (for example, requesting erasing the notes written on the memo column of the household registration book), or a party requests that the other party perform what is required by a public-law contract (for example, the contract between a public school and the student fully supported by scholarship), the plaintiff may initiate an action to order performance other than administrative acts before an administrative court. (Article 8 of the Administrative Litigation Act)

Types of Administrative Litigation

Actions for the revocation of administrative acts (Article 4)

Actions to order performance

Actions to order administrative acts (Article 5)

Actions to order performance other than administrative acts (Article 8)

Actions for declaration (Article 6)

3.3 Structure of the Administrative Litigation System

The structure of the administrative litigation system has become a three-levels-two-instances system since September 6, 2012. The administrative litigation panels of district courts adjudicate the summary proceeding litigations, litigations arising from traffic infractions, petitions against detention, and the related preliminary injunctions to preserve evidence, preliminary injunctions, first instance for enforcement-of-judgment cases. The appeals for the judgments or rulings rendered by the administrative litigation panels of district courts are adjudicated by High Administrative Courts, and the judgments or rulings rendered by High Administrative Courts on these appeals are final; no further appeal may be made. High Administrative Courts have jurisdiction over the first instance in ordinary proceedings and the related preliminary injunctions to preserve evidence, and preliminary injunctions. The appeals for the judgments or rulings rendered by High Administrative Courts are adjudicated by the Supreme Administrative Court, and such appeals may be made only on the ground that the existing judgment or ruling is inconsistent with laws or ordinances.

The chart below indicates the subject matter jurisdiction of the three-levels-two-instances system of administrative litigation:

Administrative Litigation Panels of District Courts

First instance. A single-judge panel considers both factual and legal issues.

Summary proceedings, rulings for traffic infractions, petitions that are related to the regulatory detention period, and the related preliminary injunctions to preserve evidence, preliminary injunctions, first instance for enforcement-of-judgment cases.

 

appeals

 

High Administrative Courts

First instance for ordinary proceedings and the related preliminary injunctions to preserve evidence, and preliminary injunctions. A three-judge panel considers both factual and legal issues.

Second instance. A three-judge panel considers only legal issues.

 

appeals

 

Supreme Administrative Court

Second instance. A five-judge panel considers only legal issues

If a High Administrative Court identifies a need to ensure the uniformity of legal opinions, it may make a ruling to transfer the case to the Supreme Administrative Court.

 

 

 

資料日期:107-6-11

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