行政處分構成要件效力適用之省思──以行政法院相關裁判為觀察

Reflections on the Factual Effect of Administrative Act－Observation Based on the Judgments of Administrative Courts

行政處分具有構成要件效力，向為學說與實務所肯認。然而，有鑑於行政處分法制將其有效性與合法性脫鉤處理，故一有效存在之行政處分，並不必然合法。此等脫鉤現象在行政訴訟中應如何調和，頗具爭議。本文認為，行政處分構成要件效力縱使對法院有適用之餘地，亦僅限於其有效存在之部分而已，而不及於合法性之擬制。既然行政處分為行政訴訟事件程序標的之先決問題，法院本於對程序標的合法性審查之職權，原則上自可對未經判決確認其合法性之先決處分，為合法性之審查，並以審查之結果作為後續審理程序標的合法性之基礎。

It has been widely acknowledged in both academia and practice that the administrative act has factual effects. In the administrative law system, the effectiveness and legality of the administrative act are considered separately; therefore, an effective administrative act may not necessarily be legal. How such separation should be approached in administrative litigation process is a controversial issue. This paper clarifies that although the court is bound by the factual effect of the administrative act, this merely means that the existence of the administrative act is recognized; however, the legality of the administrative act is not therefore assumed. As a subject matter of action of the administrative litigation process, the administrative court may review the legality of an administrative act that the court has not yet rendered a decision based on its authority, whose result may serve as a basis for the legality of the subsequent administrative act.