論交通標示之法律性質及其救濟

依現行訴願法第三條及行政程序法第九十二條、第一百五十條之規定，就行政處分、法規命令固有明確之定義。然於實務運作上，就交通標示等是否為行政處分或法規命令？尚有爭議，致影響人民行政救濟權之行使，自有加以探討之必要。本文首先透過介紹一般處分之概念及其與法規命令之區別，藉以釐清交通標示之性質。於確認上述法律性質之定性後，進而探討交通標示之救濟途徑等為研究範圍。按交通標示包括標誌、標線、號誌等三者，而上述交通標示依其作用觀察，則具有警告、指示、禁制等三種作用，其中亦僅禁制交通標示具有法律上拘束力。其中關於禁制號誌之性質，依我國通說見解認係對人之一般處分，並無爭議；至於禁制標誌、標線之性質，則究為行政處分或法規命令，則不無爭議？本文以為其二者實係介於法規命令與行政處分間之特殊法律制度。因此，無論將其歸類為其中之任何之一項者，皆有難以解說之處，而無從滿足各方面之要求。但基於為提供人民充足之法律救濟途徑及確保法律秩序安定之前提考量下，自將之定性為「一般處分」，似較合理，且亦較符合憲法第十六條保障人民訴訟基本權之意旨。但為釐清上述疑義，並避免爭議起見，自宜透過立法之方式予以明文規定其法律性質為是。至於如因交通標示而有請求救濟之需要時，則應分別其性質，提起適當且對應之行政救濟。

關鍵字

一般處分；法規命令；禁制交通標示

並列摘要

The terms ＂administrative deposition＂ and ＂legal order＂ are clearly defined in article 3 in Administrative Appeal Act, article 92 and 150 in Administrative Procedure Act. However, in the field of practice, there are disputes about whether ＂traffic signs＂ are administrative depositions or legal orders. The nature of traffic signs needs to be determined because it differs administrative remedy. This journal first introduces the concepts of ＂general disposition＂ and the differences between general disposition and legal order, in order to clarify the nature of traffic signs. After that, there is a further discussion about the administrative remedy. This is the research scope of this journal. Traffic signs, including ＂Signs＂ , ＂Markings＂, and ＂Signals＂, have different functions as warning, instructing and banning. Only banning traffic signs have legal binding power. In the practice field, the general opinion is that banning signals are general dispositions. But there are controversies over the natures of banning signs and banning markings. This journal holds that the natures of banning signs and banning markings are the special legal systems which lie between legal orders and administrative deposition. Therefore, it is hard to sort them into any category. Under the premise to provide the public sufficient legal remedies and to steady legal order, it seems comparatively reasonable to determine the natures of banning signs and banning markings as general depositions. Also, this fulfills the intension of article 16 in Constitution, which protects the right of presenting petitions, lodging complaints, or instituting legal proceedings. To clarify the disputes above, it is better to seek for legislation. And when there is need for administrative remedy resulted from traffic signs, we should take appropriate and corresponding measures according to their natures. The terms ＂administrative deposition＂ and ＂legal order＂ are clearly defined in article 3 in Administrative Appeal Act, article 92 and 150 in Administrative Procedure Act. However, in the field of practice, there are disputes about whether ＂traffic signs＂ are administrative depositions or legal orders. The nature of traffic signs needs to be determined because it differs administrative remedy. This journal first introduces the concepts of ＂general disposition＂ and the differences between general disposition and legal order, in order to clarify the nature of traffic signs. After that, there is a further discussion about the administrative remedy. This is the research scope of this journal. Traffic signs, including ＂Signs＂, ＂Markings＂, and ＂Signals＂, have different functions as warning, instructing and banning. Only banning traffic signs have legal binding power. In the practice field, the general opinion is that banning signals are general dispositions. But there are controversies over the natures of banning signs and banning markings. This journal holds that the natures of banning signs and banning markings are the special legal systems which lie between legal orders and administrative deposition. Therefore, it is hard to sort them into any category. Under the premise to provide the public sufficient legal remedies and to steady legal order, it seems comparatively reasonable to determine the natures of banning signs and banning markings as general depositions. Also, this fulfills the intension of article 16 in Constitution, which protects the right of presenting petitions, lodging complaints, or instituting legal proceedings. To clarify the disputes above, it is better to seek for legislation. And when there is need for administrative remedy resulted from traffic signs, we should take appropriate and corresponding measures according to their natures.

並列關鍵字

general disposition ； legal order ； banning traffic signs

國際替代計量

論交通標示之法律性質及其救濟

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