論行政訴訟停止執行之實體審查標準─以日本行政事件訴訟法為借鏡

停止執行制度對人民權利保護係扮演舉足輕重之角色，申言之，人民權利因國家或其他公行政主體行使公權力而受到侵害，於依法訴請行政救濟之過程中，由行政處分之執行，將造成一種「既存事實」，致人民縱獲得勝訴判決，亦不能實際享有權利內容。惟初步檢視本制度之實務運作，即可輕易發現仍有許多令人遺憾之處：人民對實體要件尚欠缺一定程度之了解，而有流於濫用之勢；另一方面，由於行政法院之案源激增，漸生不生負荷之跡象，連帶要件操作上也有望文生義之嫌。綜上，本文認為實體要件之解釋與操作尚有整理檢討之空間。為求發掘問題，本文將先就我國實務上相關案件進行觀察，探究其係如何適用各實體要件，並且就有疑義之處進行歸納整理。此外，本文亦將搭配我國學者對於實務之批判，而於適當之行文處，將其放入介紹，以求對我國現況分析之完整。最後，為求對我國發展能另有所補充，本文欲針對日本法實務與學說之運作加以探究；至於為何採擇該國：除該國2004年前之制度版本為我國同制度所參酌者，理論基礎與我國十分類似外，其該當停止執行之比率遠高於我國且裁判理由亦相對論述詳細，足證有參考之價值。綜上種種考量，本文將於「第二章之部分」，對於我國實務、學說如何適用實體要件進行檢視，提出爭點整理；緊接著，在「第三章之部分」，基於法制之高度相似性，引介日本法該國對於實體要件究係如何操作，為求講解清晰，將先一步就時間序─2004年，區分為修法前後之二區塊進行觀察，申言之，修法前之法制係由我國所援引，至於修法後之機制則可觀察該國對於舊法之不信任與改進之處；細部來說，本章之呈現，將個別就學者與實務見解以觀，進行整理分析。最後，在蒐集觀察日本法之內容於一定程度後，則將回過頭來，於「第四章之部分」針對我國制度所面臨之爭點，進行比較對照並提出改進之方法，簡言之：解釋論上：將針對「個別要件之闡釋」以及「思考順序之分析」開展，此外，亦就立法論上提出修法建議：將「難於回復之損害」改為「重大之損害」，期盼對我國實務之運作能提供相當之幫助。

關鍵字

停止執行；重大之損害；日本行政事件訴訟法

並列摘要

To stay the enforcement of an administrative disposition is very important for litigants whose right were infringed by the said disposition. Under current administrative remedial system, that simply filing an action for withdrawing an administrative disposition will not deservedly lead to the suspension of the legal effect and the enforcement proceeding of the said disposition would make the legal interest of the plaintiff in a winning suit only meretricious due to the continueous enforcement of the subject disposition. Moreover, there are some other disadvantages in practice regarding the substantive requirements of a stay of enforcement: First, the implications of those requirements are still blurred so that the misuse remains to be seen. Second, because of the increases of the cases for pleaing a stay of the enforcement proceeding, courts are tired of their workload and therefore tend to interpret these statutory requirements in a literal way so as to reduce their workload. In short, with regards to the substantive requirements of the suspension of the enforcement in current administrative litigation proceedings, some further reformation needs to be done. And this is just what this thesis aims at exploring. In order to discover those problems in that system, this paper will observe certain cases about this subject at first, to find out how the courts apply those substantive requirements, and point out the questionable issues in those applications. Besides that, this paper will collect other essays which also analyze those applications, and put their opinions in the proper paragraphs. At last, on the purpose to fill the development of our system, this paper will also research the practice of application of substantive requirements of the suspension of enforcement in Japan. Generally speaking, here are the reasons why this paper chooses Japanese experience for research: first, the contents of those articles prior to 2004 revision are referred to article 116 of Administrative Litigation Law, therefore, their foundation of application is similar to ours very much. Second, their percentages of suspension of enforcement is far away higher than ours, and the reasoning of their judgment is also written in detail. In all , Japanese experience is worthy to research. As all the thoughts are introduced above, this paper will prefer to concentrate on the foci of the following chapters: In chapter 2, this paper will examine how the practice and theories to apply substantive requirements of the suspension of enforcement, and arrange all the questionable issues. In chapter 3, in view of the high similarity in this two systems between Taiwan and Japan, this chapter will introduce how Japanese jurisprudential circle to operate these requirements as follows: first, for observing, this paper will differentiate their operation between “before law revised” and “after law revised” in time sequence (2004). In the other words, these articles prior to 2004 revision are referred to article 116 of Administrative Litigation Law, as to those articles after revised can be also used to observe the distrusted part and improved part in prior law in Japan. Secondly, this chapter will also observe how the Japanese practice and theories to apply substantive requirements, and arrange all the questionable issues. In chapter 4, after acquiring enough materials through comparative jurisprudence with Japan, this chapter will start to aim at those questionable issues in our country said above, and try to compare with each other in order to bring up suggestions. In short, this chapter will develop the “interpretation of each requirements” and “the steps of the examination”. Besides that, this chapter will also suggest this amendment as below: turn the requirement “damage which is difficult in recovering” to “serious damage”. In brief, this paper deeply hopes that it can provide quite appropriate help for the improvement of our system.