論都市計畫利益衡量之司法審查模式──評析高雄高等行政法院106年度訴字第400號判決

Judicial Review of Proper Weighing of Interests in Urban Planning: An Analysis of the Ruling No. 400, 2017 of Kaohsiung High Administrative Court

行政訴訟法增訂之「都市計畫審查程序」專章已公布施行，象徵都市計畫之司法審查步入法制化，然而過往行政法院大多援引判斷餘地或裁量理論進行都市計畫內容的實體審查，未能充分反映空間計畫法制的目的性規範本質。晚近雖有部分判決援引計畫形成自由與利益衡量原則作為審查法理，但具體操作仍有值得商榷之處。本文爬梳學理討論，從權力分立互動角度分析以計畫形成自由為核心的空間計畫法制，並嘗試建構都市計畫利益衡量之司法審查模式，強調法院就利益衡量瑕疵之審查，應主動彙整所有應考量之公私益，對照行政機關的利益衡量與論證以審查有無瑕疵，但同時亦應謹守事後審查角色，勿以自身衡量取代規劃者的衡量，即代為衡量之禁止，且如欲容許行政機關補正其利益衡量瑕疵，法院應有詳細說理。據此檢視南鐵東移案第一審判決──高雄高等行政法院106年度訴字第400號判決，本文認為本案法院雖採取利益衡量瑕疵理論作為審查架構，惟並未充分進行衡量錯估瑕疵之審查，且有代為論證與代為衡量之嫌，容有改進空間。本文期許藉由學說整理與實務案例之觀察，能為都市計畫司法審查模式的更臻完善，發揮拋磚引玉的功效。

The new chapter of the Administrative Litigation Act, “Urban Plan Judicial Review Procedures,” has been promulgated and implemented, symbolizing the legalization of judicial review of urban plans. However, in the past, most administrative courts invoked the theory of margin of appreciation or discretion to conduct judicial review on the contents of urban plans, which failed to properly reflect the purpose-oriented nature of the spatial planning system. Although some recent rulings have invoked the Principle of Discretion of Planning and Principle of Proper Weighing of Interests as review jurisprudence, the operation method is still worth questioning. This article analyzes the spatial planning system and its core, the Discretion of Planning, from the perspective of the Separation of Powers and attempts to establish a judicial review model for the Proper Weighing of Interests in urban planning, emphasizing that the court should take the initiative to compile all the public and private interests that should be considered for the examination of Flaw in Proper Weighing of Interests, and then examine whether there are flaws in the weighing of interests and argumentation of the planning authorities. But at the same time, the court shall not replace the planning authorities’ weighing with its own weighing. In addition, the court shall provide detailed reasoning if it wants to allow the planning authorities to correct the flaws in its weighing of interests. After looking into the first judicial ruling regarding the controversy over Tainan Underground Railway Project, “the Ruling No. 400 of Year 106 of Kaohsiung High Administrative Court,” this article believes that although the court has claimed to invoke the Principle of Proper Weighing of Interests to conduct judicial review, it did not adequately conduct the review on the flaw of Misproportioned Weighing of Interests. Also, it is likely that the court has replaced the planning authorities’ weighing with its own weighing of interests, which is not allowed. Through the introduction of theories and analysis of judicial rulings, this article hopes to facilitate the establishment of the judicial review model for the Proper Weighing of Interests in urban planning.