論當代司法對行政監督的管制挑戰：從全民健康保險藥價不實申報之管制切入

On the Regulatory Challenge of Judicial Review of Administrative Actions: The Regulation of Deceptive Drug Price Reporting under the National Health Insurance as a Case Study

本文以健保藥價不實申報管制為例，探討在管制國家的時代背景，既有行政處分概念在適用時所產生的侷限，以及法院為突破此侷限所採取之策略回應。面對非健保特約當事人之藥商，是否可對健保署將不實申報藥物不納入健保給付範圍之處置提起救濟之問題，行政法院普遍將系爭處置理解為法規命令變更，原則上不對藥商發生效力，但因其法律上對外效力構成物之行政處分，而可成為藥商提起救濟之基礎。法院此論理背後，反映國家在治理典範時代廣泛使用行政契約之時代背景。此背景除衝擊以行政處分作為救濟門檻之傳統假定，也衍生與行政契約併行之政府管制行為的法律定性與司法審查問題。面對這些挑戰，我國法院一方面願意逐漸打破既有行政處分與行政命令之形式區分；但另方面對於政府管制行為實質內容的審查則顯得保守。此運作模式一定程度呼應比較法制對政府管制行為從實質內容審查走向合法性審查的趨勢，此一趨勢除凸顯重新建構授權明確性等傳統概念之必要性，同時也是管制國家時代管制重心前置化的必然後果。面對此時代變遷，行政法學應重新省思司法的角色，尤其思考其是否能對前置化的管制流程發揮怎樣的積極功能。

By examining the regulation of deceptive drug price reporting under the National Health Insurance of Taiwan, this project investigates the limitation of the traditional legal concept of administrative disposition in the era of regulatory state, as well as the judicial response to this limitation. In such cases, drug companies often claim the National Health Insurance Administration (NHIA) decision to exclude drugs, regarding which price reporting requirements had been violated, from NHI coverage constitutes administrative disposition and is subject to judicial review. In response, the court rules that the NHIA decision is a legal order and in principal does not have direct legal effect on drug companies. However, due to the external impact of the legal order, such decision can also constitute administrative disposition upon things and serve as the basis for judicial review. The author argues that this judicial argumentation reflects the regulatory background that, in the era of governance and regulatory state, the growing utilization of administrative contracts has: 1) challenged the traditional conceptual distinction between administrative disposition and legal order; and 2) triggered the debate over the correct legal categorization of regulatory actions conducted during the administrative contracts. Facing these challenges, the court in Taiwan seems to: 1) be increasingly willing to blur the distinction between administrative disposition and legal order to provide additional opportunities for judicial review; but 2) meanwhile review conservatively regarding the substance of the regulatory actions. The conservative attitude can find resemblance in other countries and regions, where courts increasingly shift the focus of judicial review from substantive rationality to the procedural legality of the regulatory actions. The shift on the one hand reveals the necessity to reinvent legal concept for reviewing procedural legality such as the non-delegation doctrine. On the other, the shift is also the natural consequence of the evolving regulatory state where the court no longer occupies the central role in the regulatory process, a development that demands scholarly reflection on the proper role of the judiciary in the new era.