從立法權行使論行政命令之審查

Examination of Adminstrative Order from Exercise of Legislative Power

系所名稱：法律學系研究所 學位別：碩士 畢業學年：90年 指導教授：蕭文生 立法院第一屆未定期改選之資深立法委員，依司法院大法官釋字第二六一號解釋於民國八十年十二月三十一日止全部退職，此後之立法院已無資深委員。自第二屆立法委員就任後，立法院即成為我國政治的中心，故立法權之行使也就更形重要。立法不只是由人民選出代表制定法規範而已，立法權的行使還應包含對行政權的監督，所以立法權的行使也可以說是立法監督，包括政治監督、法律監督及透過對人民請願案審查之監督。立法機關對於行政命令之監督，除可防止行政權之濫用，以維護人民權益外；更可促進行政與立法機關的正常運作，並提高行政效能，此乃各民主國家對行政命令均加以妥適審查原因之所在。換言之，行政命令之所以應受國會監督，是基於人民權益之保護為中心，以避免行政權過於擴大；而為使行政機關之施政符合人民之期待，更應落實依法行政之理念，此亦為吾人所應重視之課題。本文所探討之範圍只限於行政命令之法律性監督，就立法權行使之層面，說明我國行政機關訂定之行政命令，應依中央法規標準法第七條及立法院職權行使法第六十條規定送立法院備查。故本文論述係以立法院對中央各部會所訂行政命令之審查為原則，惟於比較上如有必要亦會對相關問題加以申論。本論文分為六章，茲就各章要旨說明如下：第一章「緒論」。共分三節，分別說明本文研究動機、目的、研究範圍及方法、研究限制以及論文結構之安排。第二章說明「立法權之意義及功能」。共分三節，首先釐清立法權之意義，次及立法權之功能，再論及我國憲政體制下之立法權。尤其著重於立法權之特質、權力分立原則下之立法權、立法權行使者之本質與憲法及其增修條文、立法院職權行使法所規定之國會具體權限如立法權、議決預算權、審查決算權等財政權，質詢權、調閱權、聲請釋憲權等監督權、領土變更案之提案權、戒嚴案與緊急命令之追認案、條約案與宣戰、媾和案、總統副總統缺位之補選、人事同意權、不信任投票權、彈劾案之提出、罷免案之提出與議決國家其他重要事項之權的論述，並敘及國會制定法律、法律在憲法秩序及權力監督之功能。第三章「行政命令之概念」。共分六節，從行政命令發生原因展開，談及行政命令之意義及類型，分別以現行之中央法規標準法、行政程序法、地方制度法及立法院職權行使法等規定為重點加以分析。論及行政命令之功能及訂定程序，敘明其特色、類型及運作實況，並敘述行政命令之合法要件，分別說明形式及實質合法要件。第四章「民主國家國會對行政命令之審查」。分為四節，首先論述德國國會對行政命令之審查方式，再論及美國、英國、法國等國國會對行政命令之審查方式，最後並就各民主國家國會對行政命令審查制度之優缺點做一比較。第五章「我國立法院對行政命令之審查程序」，分為四節，先就立法審查機制之類別加以說明，論述單純送置義務、廢棄請求權之保留、立法追認及同意權之保留等四種類別。次論及行政命令之送交，再論立法院之審查程序，分別說明程序委員會初審、常設委員會審查及審查後之處理等三項審查程序與提報院會之程序；並以目前立法院對行政命令之實際審查案例來佐證運作情形。最後再檢討現行立法院對行政命令之審查制度，復就目前審查缺失一併提出改進之道，並敘及行政機關應如何配合辦理之處。第六章為本文之「結論與建議」。簡要綜合論述前述各章論點，並就制度改革、實務運作及修法方面提出建議，以供有司參酌。

All of the 1st senior legislators not reelected periodically based on the 261st Interpretation of the Council of the Grand Justice have been abolished by the end of Dec. 31, 1991 and after then no senior legislator has been kept. After the 2nd legislators were sworn to their offices, the Legislative Yuan has become the center of our political administration; therefore the exercise of such legislative power has become more and more important. Legislation is not only for people to elect representatives to enact legal regulations, the exercise of legislative power shall also include supervision over administrative power; therefore, exercise of legislative power can also be said as a legislative supervision that contains a supervision that is political, legal and which shall be made through examination on people’s petitions.Besides of preventing the misuse of administrative power, the supervision performed by a legislative institute over administrative orders can also help increase administrative efficiency, and which is why each democratic country shall perform suitable examination over administrative orders. In another word, the reason why an administrative order should be supervised by the parliament, it is mainly because of trying to protect people’s rights to avoid over-expansion of administrative power. And in order for the political administration to comply with what people expect, and for the ideas of administrative based on law to be put to practices, it is also an issue that we should pay our attention to. The range discussed in this article is only restricted for the legal supervision over administrative orders, and based on the aspect of exercising legislative power, explain the administrative orders enacted by the administrative institutes should be sent to the Legislative Yuan for examination based on Article 7 of the Standard Regulations of Central Law as well as Article 60 of the Law of Power Exercise of the Legislative Yuan and reserved for later checks. Therefore, the description of this article is based on Legislative Yuan’s examination over the administrative orders established by each department of the central government; however, should it be necessary for comparison, it will also provide detailed explanation over related issues.This article is divided into 6 chapters and the aim of each chapter is as follows:Chapter I: Introduction. There are 3 sections in here, which respectively explains the motivation, objective, range, method and limitations of this study as well as the arrangement of the structure of this article.Chapter II: Try to explain “the meaning and function of legislative power.” There are 3 sections. First clarify the meaning of the legislative power, then the function of the legislative power, then the legislative power under our constitutional system. It is especially focusing on the characteristics of the legislative power, the natures of the legislative power under the principle of the Division of Power and the exercisers of such power, and the Constitution & its amendments and additions, the concrete range of power provided by the Law of Power Exercise of the Legislative Yuan such as financial rights including legislation, budget resolution, budget examination & resolution etc.; supervising rights including interpellation, borrowing and reading, request for interpretation of the Constitution etc.; proposing rights such as in the case of territorial alteration, proposing later recognition such as in the case of martial law, the later recognition of the emergency order, treaty and war declaration, matchmaking, supplementary election for the vacant Presidency and Vice Presidency, personnel consent, non-confidence vote, denunciation, or proposing recall and resolving other important rights of the country. Also it mentions that the parliament shall establish laws and the function that the laws shall play in terms of maintaining constitutional order and supervising the powers.Chapter III: “Ideas of Administrative Order”. There are 6 sections of it, starting from the reasons why an administrative order occurs, then the meanings and types of the administrative order, next analyze it based on the Standard Regulations of the Central Law, the Law of Administrative Procedures, the Law of Local System and the Law of Power Exercise of the Legislative Yuan etc. Here talks about the functions of administrative orders and the procedures for their enactment in order to explain their features, types and actual operations. Also with the descriptions of the legal requirements for an administrative order, it has illustrated its types and substantial legal requirements.Chapter IV: “A Democratic Country’s Examination over Administrative Order”. Four sections are out of it. First talks about the ways that the German parliament examines the administrative order, then the ways that America, England, France etc. examine their administrative orders. Finally comes up with a comparison of these democratic countries by their advantages/disadvantages for their examining system of the administrative orders.Chapter V: “Our Legislative Yuan’s Examining Procedures about the Administrative Orders”. It is divided into 4 sections. First states about the types of the examining mechanism of the legislature by talking about the 4 kinds of rights such as the duty of simple delivery, retaining of denunciation request, legislative later recognition and the right of consent etc. Next comes the delivery of administrative order, and then the examining procedures of the Legislative Yuan by respectively explaining about the 3 examining procedures including the Initial Examination of the Procedure Council, Examination of the Standing Council and the Post-examination Processing etc. as well as the procedures when reporting to the Legislative Yuan. Also its practices can be evidenced by the actual examination cases that the Legislative Yuan has performed about the administrative orders for now. Last conduct a review of the existed examining system that the Legislative Yuan has made on the administrative orders, then concerning the disadvantages of current examination, propose some improvements and how the administrative institutes shall cooperate with such.Chapter VI is the “Conclusion and Suggestions” of this article. It is simply integrating all of the points mentioned in the preceding chapters; then in terms of systematic renovation, practical operation and legal amendment etc. propose some suggestions for the concerning authorities for taking into consideration.