- 期刊
法國行政第三人撤銷訴訟之研究
Research on French Administrative Tierce-Opposition
摘要
第三人撤銷訴訟，係指針對他人間已經存在、發生既判力的司法判決，因侵害第三人的權利，而得以由該第三人起訴請求法院宣告該他人間既存判決對自己不生效力的特殊救濟程序。作為法國民事訴訟法制中的特色之一，法國行政訴訟法制亦面對著要否容許當事人提起這一訴訟的相關討論。但是這樣的制度爭議，卻面臨著行政訴訟的本質問題。特別是越權訴訟或者撤銷訴訟，似乎並不是為了保護相對人的權利而設置，能不能在這樣的判決中發生對第三人權利的侵害，在論理上大成問題。本文擬以1912年法國中央行政法院Boussuge案判決所引發的行政第三人撤銷訴訟容許性爭議為出發點，不僅探究行政第三人撤銷訴訟的制度邏輯，並討論主觀訴訟與客觀訴訟對於行政救濟制度所造成的整體影響。最後並比較我國行政訴訟法中的「重新審理」制度，思考法國行政第三人撤銷訴訟得以對我國行政救濟法制所可能帶來的借鏡效果。
並列摘要
The third-person opposition proceeding, or so called ＂la tierce-opposition＂, is an extraordinaire remedy approach which refers a third person to the judicial judgment that already exists and has the res judicata between others, even in theory, the third party is not effected by the judgement, and out of the scope of res judicata. As one of the characteristics of the French civil procedure legal system, the French administrative litigation legal system is also faced with the relevant discussion on whether to allow the parties to file this lawsuit. However, such institutional disputes face the essence of administrative litigation. In particular, ultra-authority litigation or revocation of litigation does not seem to be set up to protect the rights of relatives. Can it be infringed on the rights of third parties in such judgments, which is an important dispute in theory. This article intends to start from the adjudication of the third party's revocation of litigation caused by the judgment of the French Conseil d'Etat in the case Bousuge in 1912. It not only explores the institutional logic of the administrative third party to revoke the litigation, but also discusses subjective litigation and objective litigation for the administrative relief system. In fact, such a discussion means that an administrative remedy system is always facing the issue of scope : universal or individual. Since the administrative tribunal is competent to annuler an administrative decision, such a competence will be realized as the tribunal has an equal power to administrative rules. In 1999, Taiwan has introduced an remedy system for the third party of administrative jurisprudences. But this newly introduced system always brings problems of pratice, even the system itself. Finally, this article will compare the ＂re-trial＂ system in Taiwan's administrative litigation law, and consider the possible effect of the French administrative third-person opposition proceeding on Taiwan's administrative remedy legal system.