覆議制度保障了誰？從臺灣地方縣市覆議權之規範及行使經驗探討（1994-2010）

本文同時針對覆議權的法制規範面及經驗實務面，希冀探討覆議權在臺灣地方政府自1994以降，依據省縣自治法及直轄市自治法等二法，以及1999年整合改訂的地方制度法來行使，究竟能否達成其理論上之目的—保障行政權，及立法過程的周延性。綜合前面的分析，本文發現：第一，地制法對覆議權的相關規範確實較二法能保障行政權，但這樣的保障較二元民主典範美國總統覆議權的效力，相對仍不足；其次，地制法的善意規範，不見得對行政行使覆議權有利，而規範不清之處，又造成行使的疑義，亦未見得嘉惠於決策內容之周延。第三，覆議權的行使情境還必須剔除派系及黑金特別活躍的地方，才較能保障少數政府的行政權。所以如要能讓覆議制度較徹底的保障行政權，法規上對覆議權規範不夠明確，形成法律灰色地帶；或本為保障及提升行政權的，但實際上行政權並未得到應有益處等問題，應做適當的修正及調整。本文針對這些，提出4項未來地制法或可參考修訂之處。

關鍵字

縣市覆議權；地方制度法；臺灣；地方議會；覆議制度行政

並列摘要

This article studies the veto power which resides in Taiwan's local governments both from the legal/ institutional and empirical perspectives. Three related Acts that have regulated local veto power since 1994 are examined in this study. They are: the Self-Governance Act for Provinces and Counties (SGAPC, 1994), the Self-Governance Act for Special Municipalities (SGASM, 1994), and the Local Government Act (LGA, 1999) that has integrated the two SGAs and become the currently enacted law. The article explores whether the regulations regarding veto power drawn from the two SGAs, as well as the LGA, and their consecutive implementation in practice, have been able to achieve the theoretical goals designated in veto power, i.e., to protect administrative power, on the one hand, and to improve the quality of legislation, on the other. After analyzing these three Acts and comparatively examining their realization between 1994 to 1999 and 2000 to 2010, the article uncovers the followings: First, although the veto power institution resided in LGA has been doing a better job than that in the two SGAs in terms of protecting administrative power, its practical function has not been as effective as that of the veto power institution designated by the American presidential system, which is the so-called model of dual democracy. Second, some regulations in the LGA that seemingly are intended to protect the administration have not really been beneficial to it in practice. Furthermore, some of them may be obscure in nature, and have, in fact, resulted in some confusion and debate when enacted. Neither have these kinds of rules been able to improve the quality of legislation. Third, the effective use of the veto power by the local administration has been limited to the countries & cities that are not subject to active factions or black money activities. In sum, if the veto power, as designated, aims to protect the administration, some ambiguities residing in the current LGA's regulations should be further clarified. Some regulations that are well intended but not substantially beneficial to the administrative power in practice may also need to be adjusted. This artlcle then provides four suggestions for the consideration of future LGA revisions.