諮詢型委員會兒少代表的參加及其法律意義──兼探行政程序上未成年人之行為能力

Participation of Children’s Representatives in Advisory Committees and Their Legal Impact: Minor’s Capacity to Act in Administrative Proceedings

2019年4月間新修正兒童及少年福利與權益保障法（下稱兒權法）第10條，明文主管機關為協調、研究、審議、諮詢及推動兒童及少年福利政策，應於一定比例以上邀集兒童與少年（下稱兒少）代表參與。此處也衍生出未成年兒少代表之參與，可否如同成年人般被任命為政府機關諮詢性質委員會委員？如是，未成年兒少代表就參與行為，應否具有行政程序上行為能力？又兒少代表參與行為本身，復具有如何法律意義？此等問題，尚待釐清。是以，本文將梳理現行法制中行為能力規範之意義，指出行政程序行為能力概念的多義性及其適用民事法理的界限；其次，探討現代行政活動中（機關內任務編組）審議委員會之「參加」意義、功能及其規範要素，分析兒童及少年福利與權益保障促進會之規律規範；並說明兒童權利公約第12條兒少表意權旨趣及其在我國法制上實踐要求，從尊重兒少最佳利益原則及實現兒少表意權的觀點，肯認兒少代表參與公民參與型諮詢委員會之法律意義，以為結語。文中兼及日本法之比較研究，期以他山之石，提供我國法制研究之借鏡或新的參考視點。

On April 24, 2019, a new amendment of Article 10 of the Protection of Children and Youth Welfare and Rights Act (PCYWRA), enacted“The director of the authority shall be served as a convener to invite relevant scholars or experts of children and youth welfare, representatives of the relevant private institutions or groups, representatives of the industry competent authorities, and representatives of children and youth to coordinate, to study, to review, to consult, and to promote the welfare policy for children and youth.”The provision raised the legal question whether minors could be members of the advisory committee of government agencies. Furthermore, what does it mean for minors to participate as committee members? This study explores this issue from the perspective of public law. First, the meaning of the capacity to act under the current legal system is clarified. In addition, the ambiguity regarding the concept of administrative procedure capacity to act and limitation of application to the doctrine of the capacity to act in private law are highlighted. The following two aspects are then discussed. First, the role of the council/advisory committee in current administrative activities, as well as its functions and implications of participation are discussed and the rules and its members of the advisory committee of welfare and advocacy analysis. Second, Article 12 of the Convention on the rights of children to be heard and the requirement of practical practice in our legal system are examined. The interpretation of Article 22 of Taiwan’s Administrative Procedure Act and the newly amended Article 10 of PCYWRA is also considered. Conceivably, not only representatives of children should be allowed to participate in the advisory committee of welfare and advocacy but also to respect the best interests of children and youth and to realize the rights of children to be heard. In addition, this work also conducts a comparative study of Japanese law to provide suggestions and new perspectives for legal research in Taiwan.