從國家履行責任觀點論行政法人

Analysis of Public Bodies from the Perspective of the Implementation of State’s Responsibility

In order to ensure the implementation of national tasks and the rational structure of administrative organizations, we have enacted the Administrative Law of the Republic of China. From a holistic point of view, there are many different methods and types of organizations to perform tasks, However, the rationales behind the choice of an incorporated administrative agency and the associated institutional structure are yet to be well explored.
This paper clarifies the principle of state responsibility division from the concept of responsibility sharing, and indicates that incorporated administrative agencies share common theoretical backgrounds with the privatization of government-owned enterprises. If the government decided that a public service should remain in the hands of the state, the institutional choice should be handled in terms of task dependency. The role of governance in administrative jurisprudence is crucial in this regard. An organization chosen to govern a particular task is the object of governance to satisfy the criteria of correctness and effectiveness. In this regard, the constructive and regulatory functions of an incorporated administrative agency can provide a predetermined framework for organizational construction, transformation, and innovation. The governance structure of incorporated administrative agencies can be defined in terms of non-agency and non-autonomy on the one hand, and the autonomy required by the task on the other.
The meaning of the existence of legal person in public law is to operate as an organizational power for operational planning and operational discretion. However, the current system and doctrine have some doubts about the establishment of incorporated administrative agencies. In this paper, the nature of an incorporated public bodies is considered, and the characteristics of the task are explained in terms of the demand and supply administrative function. As for the regulation of the status of a public legal person, it is necessary to reconcile the autonomy and the supervision of others through a combination of ex ante influence and ex post supervision mechanisms to improve administrative efficiency and realize the State’s responsibility of public welfare.