- 學位論文
農田水利會公法人困境與制度續造
The Dilemma and Further Development of Legal System of Public Incorporation for Irrigation Association
摘要
臺灣農田水利事業經營體制之演變，歷經明清時期村落住民之「私法自治」，繼而日治時期為求控制臺灣農業及水資源，日本政府將內地學習德國法制創設水利組合制度之經驗導入臺灣，進而開啟農田水利事業「公法自治」方向，嗣後中央集權思想濃厚之國民政府治台初期，被動地以公法人地位接納農田水利會，然因公法人體制不健全，導致農田水利會公法人之功能爭議不斷。雖然立法者已於2018年修正農田水利會組織通則，定期限將農田水利事業收回由國家行政機關自辦。然而，本文仍嘗試由多元、開放之角度探討農田水利會公法人體制之續造。 農田水利事業演變迄今，其任務及利害關係人漸次複雜多元，典型的德國公法人制度是否足以回應客觀環境變動，抑或我國現行法律制度與行政體系本質上不適於操作農田水利會公法人制度。本文剖析農田水利事業範疇及任務並考證明清時期以來農田水利組織體制之演變，復以公法社團法人為中心探討自治制度之概念、目的與功能，並簡析德國水土協會、日本土地改良區及荷蘭水利會之設立、功能、組織及監督機制。此外，亦納入行政機關運作實務及司法機關之見解評析，以論述農田水利會公法人興辦農田水利事業之困境與改善之道。 農田水利會公法人為既存之行政主體，其組織人員與公益資產之保障，以及自治功能之重要性，應在組織變革選擇中納為重要關鍵因素與行政組織法之原理原則並行判斷。再者，學者Elinor Ostrom提出永續經營之灌溉組織所服膺之原則，以及德國、荷蘭及日本均採行自治團體之農田水利組織體制，都再度強化本文大膽提出的最終建議:社團公法人仍為農田水利事業體最佳經營模式。然而，基於農田水利會公法人體制必將依法「改制」，本文亦提出必須關懷之法制度設計重點。
並列摘要
The management of irrigation and drainage affairs in Taiwan during the period of Chinese Ming-Qing Dynasty was based on autonomous principle of private law, while during the period of Japanese governance, the Japanese government introduced to Taiwan the practice of irrigation cooperatives learned from German to control agricultural and water resources in Taiwan, which was based on autonomous principle of public law. Soon after the period of Japanese governance, Kuomintang government passively adapted irrigation associations as public legal persons. However, the association legislation was incomplete and controversial, resulting in arguments about the functions of irrigation associations as public legal person. Although legislators amended the Act of Irrigation Association Organization in 2018, aiming to reform current irrigation associations to be an administrative agency, the study still tried to openly investigate and discuss the reformation of irrigation associations from different perspectives. The management of irrigation and drainage affairs in Taiwan has gradually become complicated regarding the missions and the associated stakeholders. It is questionable whether the typical system of public legal person adapted from German can respond properly to the variation of social and environmental conditions. It is also doubtful whether the current legislative system and administrative system can fundamentally support the practice of irrigation associations as public legal persons. Thus, this study analyzed the scopes and missions of irrigation and drainage affairs and explored the institutional revolution of irrigation and drainage affairs. Further, the concepts, objectives, and functions of autonomous public juridical association was discussed in this study. The study also reviewed the establishment, functions, organizations, supervising mechanisms of water and soil associations in German, land improvement districts in Japan, and water boards in Netherland. Additionally, this study examined comments on the management of irrigation and drainage affairs from administrative agencies and judicial organs. Finally, this study summarized possible approaches to improve the performance of irrigation associations as public legal persons. Since irrigation associations as public legal persons are existing administrative subjects, the ensuring of the institutional staff and assets and the importance of the autonomous functions should be considered as critical factors and evaluated based upon the principles of administrative agency legislation when the government executes the reformation the irrigation associations. Moreover, the principles proposed by Dr. Elinor Ostrom regarding sustainable development of irrigation and drainage affairs, and the facts that German, Netherland, and Japan have practiced well the irrigation and drainage institutions as self-governing body, have strengthened the solidity and soundness of the conclusions derived from this study: the practice of irrigation institutions as public legal persons is the best approach to manage irrigation and drainage affairs. However, legislatively speaking, since irrigation associations will be eventually reformed to an administrative agency in years, this study also proposed suggestions for the detailed design of the legislation that the legislators should concern for the reformation.