| Summary: | 碩士 === 東海大學 === 公共事務碩士在職專班 === 99 === According to the provisions of Article 19 of the Constitution, people have the obligation to pay taxes in conformity with the law. Regarding to the compulsory execution system of the obligation of monetary payment on public law is referred to people based on the specific reason and the country imposed on the people as the contents of the burden of monetary payment. If people did not comply with or breach the obligation of monetary payment on public law, and have given the administration to execute the very means or force to urge their obligations, or accomplish and implement their responsibility as the same actuality status in order to achieve administrative purposes.
On the distinction between rights and responsibilities, the civil claims and liabilities are executed by the district Court of enforce civil execution; the obligation of the monetary payment on public law is referred to claims of public laws and is administrative execution by responsible authority of Administrative Enforcement Agency or branch. It’s called auction duality system on theoretical or duality enforcement execution. Due to obligor’s property is the common security for all creditors, base on fair principle, no any differences between the execution of obligation of the monetary payment on public law and civil enforcement, adopt non-more seizing principle, management of seizing competition as well as the first seizure authority on the same seized subject matter of obligor, its right to punishment is limited and it should be implemented in back execution authority.
Our country’s Administrative Enforcement Act completed the amendment procedure on 11 November 1998 and executed on 1 January 2001. The new law added the execution procedure of the obligation of the monetary payment on public law. The enforced cases from original penalty authority and transfer to financial count have changed to Administrative Enforcement Division of the Administrative Enforcement Agency of the Ministry of Justice to be responsible for the implementation. Regarding to the execution procedure, the provisions of Article 26 of the Administrative Enforcement Act: On the implementation of this chapter, except as otherwise provided in this Act, permitted to provisions of Administrative Enforcement Act. This general type of quasi-legislative approach derived the following contradictions and must be resolved. 1. The permitted range is too wide and is in the uncertain condition. It affects people in the law of legal stability and predictability, the legislation is not perfect. 2. The administrative execution is belonged to the role of administration authority and it’s incompatible with the legal principle of removed quasi-the civil procedure act. The two are different in nature, should not be permitted result in adopt the litigant advance principal to combine with the disposition principal, and to be more unsuited places between theory and practice as well as unclear disputes and continuous frictions on the execution. The way of radical reform should adopt thorough authority advance principal.
The administrative execution is belonged to the both sides of the relationship. The agency of administrative execution is the position of enforcement authority of monetary claims enforcement procedure and is responsible for processing each execution procedure, and referral authority is on behalf of the loaner’s position of nation or other local governments to support the process of execution procedure as well as accomplish the monetary claims of public law. Based on an organic administration of nation-wide administrative organizations, referral authority should be in charge of the tax cooperation obligations and how is the relationship between the agency of administrative execution and supporting authority? It will be discussion together.
How is the program design of administrative procedures can be identified as a reasonable, legitimate, with the requirements of procedural safeguards? The standards of Administrative Procedure Act should be with the duty to act fairly, right to be informed, the right to be heard and the duty to give reasons as these four points for conducting the meaning of due process of law. As the Administrative Enforcement Act of administrative execution procedures of the obligation of the monetary payment on public law are adopting the systems of administrative sanctions and executive authority separation. The service of documents of administrative sanction is belonged to the right to be informed of valid administrative procedures, and the nominal execution is whether legal service is not only involvement to obligor on the entity but also burden the obligation of monetary payment on public law. In the procedure, it’s related to the filed petition from obligor and the protection issues of the right of legal actions of administrative lawsuit as well as people deserve to be seriously attention. Furthermore, the controversy of referral execution cases from enforcement authority whether they have the right to withdraw. The practical opinions are different and will be clearly defined of law amendment in the future.
About the execution of the obligation of monetary payment on public law, it has been interfered the property right of people and personal freedom very huge on the whole. The amended announcement of Administrative Enforcement Act on 11 November 1998, the provisions of Article 17 and 19 of arrest custody whether they are conforming to Constitution have been many controversial issues. In order to comply with the due process of law for personal freedom of the provision of Article 8 of the Constitution, applied the application of constitutional interpretation to the Grand Justices and according to the explanation of No. 588 from Grand Justices on 28 January 2005 as well as it declared the partial provisions of Article 17 and 19 of Administrative Enforcement Act are unconstitutional. After the Legislative Yuan three-reading procedure to pass the amendment Article 17 and 19 of Administrative Enforcement Act on 27 May 2005, and go into effect on 22 June in the same year.
The purpose of compulsory execution on administration is forcing the obligor to accomplish the contents of obligations and is not blaming the behaviors in the past. Therefore, the administrative enforcement method is not administrative penalty, and is the execution issues of the Article 7 of Administrative Enforcement Act. The provision of Article 131 of Administrative Procedure Act is the relationship of right to be requested on public law and the provision of Article 27 of Administrative Penalty Act is to declare judicially the administrative penalty with different time effect due to before execution penalty and the right to request on public law is not happened. Because administrative authority has made penalty (administrative sanctions) to occur laws relationship result in the civil obligation on Administrative Law. Therefore, the right to penalty is related to the right to be formed and is not the right to request on public law, without any conflicts among these three acts and has their suitable scope. Its suitable relationship is not based on special law surpassed in general law as well as nor competing regulations, no application issues of the alternative. It’s usually to cause confusion in practical application and should be clarified.
Secondly, the problems of processing execution cases are gradually surfaced in practice after the new law has been implemented. For example, the type of obligation of monetary payment on public law and difficult to define the scope; limited portions of the succession after the amending the law related to inheritance tax issues arising; the owed taxes problems formation from the dead owner of one-man company or companies responsible head, the business taxes levy of foreclosed property is not fully paid, and is not permitted to take unconstitutional deductions application of foreclosed responsible person; after PC Data Protection Act enacted, it’s obviously difficult to gain property data related to obligor and claims to determine the implementation period is too long to lead to full-time problem can not be avoided; the petition of rejection is deficiency at the relief function, its reasoning is not clear, the decision on petition of rejection was filed against any relief questions of statements and administrative lawsuit, it concerns the right of action to protect the core domain for inalienable as well as it has clearly defined on law amending in the future. How to simplify the execution of small case procedures, real estate pricing accepted question, inherited estate agent registration, human resource insufficiency. They really depend on the obligation of monetary payment on public law to enforce relevant provisions of the comprehensive review are required.
Regarding to execution cases treatment in practice, there are still many problems to be solved. This study used execution theory to explore the effect factors as execution from system, communication, resource, bureaucrat structure and executor’s intention to deeply discuss execution processes about stagnation of taxes donate what factors are interrupting the execution of administrative execution and affecting execution performance for seeking the best solution.
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