Study on resuming administrative procedures -focused on the variation of administrative disposition’s Bestandskraft

• Main Authors: Cheng-Yun Hsieh, 謝承運
• Other Authors: 蔡宗珍
• Format: Others
• Language: zh-TW
• Published: 2017
• Online Access: http://ndltd.ncl.edu.tw/handle/6v663g

碩士 === 國立臺灣大學 === 法律學研究所 === 105 === Resuming Administrative Procedure (wiederaufgreifen des Verfahrens) is the procedure established in Article 128 of Taiwanese Administrative Procedure Law, which allows respondents who are subject to an administrative disposition or other involved parties to apply to the administrative authority after the lapse of the statutory period of legal remedy, for abandonment or amendment to the administrative disposition under certain circumstances. Therefore, it is one of the ways to abandon the administrative disposition, with a goal of protecting people’s rights. Resuming Administrative Procedure allows people to break through the “formelle Bestandskraft”, or sustainability of administrative dispositions and apply to the administrative authority for abandonment or amendment to an administrative disposition. Accordingly, it is an irregular remedy procedure. However, it does not apply to every administrative disposition but only apply to the ones which already have “formelle Bestandskraft” so that it is able to legalize the administrative procedure. The justification of Resuming Administrative Procedure is based on “the principle of change of circumstances” and on the basis of “maintaining the legality of administrative dispositions”. In the legislative process of Taiwanese Administrative Procedure Law, there are different versions of its draft, and their normative models and contents also vary. Additionally, compare with Resuming Administrative Procedure in Germany, although Article 128 of Taiwanese Resuming Administrative Procedure is adopted from Article 51 of German Federal Administrative Procedure Law, there are many differences between Resuming Administrative Procedure in Taiwan and in Germany. Therefore, different normative models in different drafts of Taiwanese Administrative Procedure Law and that of German Federal Administrative Procedure Law, can all be materials and elements of this study. III Based on the justification of Resuming Administrative Procedure mentioned earlier, there is room for legalization of Taiwanese Resuming Administrative Procedure. According to the different drafts of Taiwan’s Administrative Procedure Law as well as German Federal Administrative Procedure Law, there are lots of problems in Taiwanese Resuming Administrative Procedure, including the beginning of a procedure (How the Procedure begins), the process in which people apply to authorities, the closure of an Administrative Procedure, and finally the remedy against the decision made by the administrative authority. Therefore, this study addresses a suggestion on amending the law and tries to solve the above-mentioned problems, giving Taiwanese Resuming Administrative Procedure a new life.