法律所定地方自治團體管轄權限劃分及權限委任之探討──兼論以直轄市政府所屬機關名義對外為行政處分之必要性

Study of Regulated by Law the Division of Local Self-Government Jurisdiction and Delegation of Authority:Also Comment on the Necessity of Administrative Sanction Made by the Name of the Government Agency of the Municipality Directly under the Central Government

憲法第10章規範中央與地方之權限，第11章規定地方制度，然我國實質意義的地方自治應以1999年公布之地方制度法施行為起始點，該法之施行已20餘年，回顧這20幾年來中央與地方權限爭議不斷，姑不論事涉政治屬性之爭議，即令是單純的憲法或法律的概念也爭論不休，本文擬探討的地方自治團體管轄權性質也是爭論議題之一，這問題涉及憲法、地方制度法及其他法律所規範事務之處理權限，為地方自治團體處理自治事務最基本且是最重要的核心價值部分，但令人遺憾者，不僅中央政府忽略了當時修正各中央法律所定主管機關之原意，甚或執意曲解直轄市政府單指狹義之直轄市政府，不包括直轄市政府所屬各機關；而在司法實務部分，2014年最高行政法院原已藉由庭長法官聯席會議決議確立法律所定主管機關為直轄市政府之意涵，不單指直轄市政府此一機關，而係以直轄市政府代表直轄市，詎大法庭制度施行後此一決議見解為部分法官所不採，亦即部分法官又回歸傳統見解，將直轄市政府之意涵框架在狹義的直轄市政府，以此見解為基礎僅承認唯有透過權限委任始得由直轄市政府所屬各機關以各該機關之名義對外行使機關之職權，此一法律見解乍看之下似僅關乎單純的管轄權爭議，實則事涉法律合憲性與否及地方自治團體組織高權是否受侵害的嚴正課題。
本文嘗試以憲法、地方制度法、行政程序法及各作用法有關規定之意涵與立法原意去釐清由來已久涉及地方自治團體管轄權、權限劃分、權限委任之爭議及以組織自治條例明定權限劃分與權限委任之必要性，並進一步推論以直轄市政府所屬機關名義對外做成行政處分之於地方自治團體及其居民之必要性。

Chapter Xof the Constitution governs Powers of the Central and Local Governments, and Chapter XI of the Constitution governs System of Local Government, however, the substantive local self-government in AD 1999 should start with Local Government Act, which was published in 88 of the Republic of China. The Local Government Act has been administered for over twenty years, and the continuing controversy of powers of the Central and Local Governments have also been there for over twenty years. Regardless of the controversy of political attributes, even simple concept of constitution and law can keep arguing. The nature of the local self-government jurisdiction, which this article is going to investigate, is also one of the controversial issues. This issue, which involves the authority to handle matters regulated by the constitution, local government act, and other laws, is the most basic and vital core value about autonomous affairs which local self-government handles. Unfortunately, not only did the central government ignore the original intent of the competent authorities defined by central regulation amended at the time, but it also insisted on misinterpreting the term“municipal government directly under the jurisdiction of the central government”to refer only to the municipal government in anarrow sense, excluding the various agencies under the municipal government; and in terms of judicial practice, the Supreme Administrative Court in AD 2014 originally established through aresolution of the chief judges joint conference that the meaning of the competent authorities set forth in the law as the municipal government directly under the jurisdiction of the central government did not refer only to the municipal government directly under the jurisdiction of the central government. However, this resolution was rejected by some judges after the implementation of grand chambers system, which means some judges returned to the traditional view, framing the meaning of the municipal government in the narrow sense of the municipal government, and based on this view only recognizing that the authorities of the municipal government can only be exercised externally by the agencies under the municipal government in the name of each agency through appointment by authority. At first glance, this legal opinion seems to concern asimple jurisdictional dispute, but in fact, it is aserious issue of the constitutionality of the law and the infringement of the high rights of local self-government.
This article attempts to clarify the long-standing controversies regarding the jurisdiction, division of authority, and appointment of local self-government and the necessity of the organizational self-government regulations to specify the division of authority and appointment of authority by taking into account the meaning and legislative intent of the constitution, the local government act, the administrative procedure law, and the relevant provisions of each functional law, and further discusses the necessity of administrative sanctions on local self-governing bodies and their residents in the name of the authorities under the municipalities directly under the jurisdiction of the municipalities.