Timely Trial In Administrative Litigation

Justice and efficiency are the court's fundamental principles for serving the people; required by law-abiding basis for running a nation, a well-functioning procedural law is essential in courts' role of administering trials. Following the increasingly complicated affairs at modern times, it has become a major issue to have a sound and well-operated administrative litigation system for a timely trial. Both sides of the Strait belong to Chinese cultural society; they adopt the continental legal system and share the same historical experiences. During the time of confronting mutual problems in a new century, the use of timely trial for examining existing administrative litigation system is imperative in mutual understanding and references.Adopting a legal and historical research approach, we explore the origin of law, analyze and compare the legal interpretation and observation after literature reviews. The timely trial as a litigant privilege is studied by a descriptive and explorative method. We also focus on a detailed review of the elements including establishment of judicial organ, the norm of judicial procedure, the handling of judicial practice, the flexibility of judicial circumstances, judicial relief and prevention of justice abuse, which are closely relevant to the core system of timely trial; finally, we propose suggestions for future amendment.Regarding the fundamental right of litigation, first we organize and sort out the development of administrative litigation system in other countries and the system adoption in our country (China) to understand that the timely trial can ensure administrative litigation and also safeguard public interest. Based on the norms of constitution and administrative law, we establish the origin of law for timely trial and further explain the tendency of administrative litigation delay and the direction for improvement.In terms of the establishment of judicial organ, the concept of "equivalence of court" and principle of "convenient to use" are especially emphasized. By using actual examples, we describe the difficulty of practice, the limitation posed by the framework of public law and private law, and the judicial conflict and delay caused by the division of civil court and administrative court in continental legal system. On the other hand, there is a growing demand of special court created for the technology development in modern society, which may be considered as a possible solution for resolving the administrative pressure suffered by basic-level court or the professional deficiency problems in court. In addition, we review the current regulations regarding jurisdiction and propose plans which meet the needs on both sides.As to the norms of judicial procedure, the concept of traditional court needs to be adjusted and a more flexible litigation process, based on the parties involved, should be advocated for the protection of procedure. Several issues such as the disciplinary action and restriction of the interested parties, norms of the entrusted agent and the necessity of participating litigation are analyzed. Most importantly, after analyzing the nature of reconciliation and mediation, based on the organizational structure of division of labor, we believe that it is not appropriate for the court to intervene the mediation process in administrative cases. However, due to the factual needs, we would rather establish a reconciliation system in administrative litigation instead of withdrawal after settlement out of court for the interested parties. So, both parties have rights for disciplinary action without violating public interests; under the supervision of court, they can publicly make settlements that meet the standard of divisional and administrative procedural regulations, and also recommend required criteria.In terms of the operation of judicial practice, for finding the truth, we analyze doctrines of the parties, authority and the obligation of explanation in court to propose a timing basis for judicial purposes. For the needs of explaining fact, the burden of proof is also a joint responsibility of parties involved in addition to the defendant organ. A standard for estimation and calculation may be established by authorized administrative organization and the distribution of evidential burden should be regulated in procedural law or in practice.Concerning the flexibility of judicial circumstances, under the consideration of public interests, the application of circumstantial change in Taiwan area or abroad is also applicable on taxation, trademark, patent, and settlement of engineering and public law, except the use on contract agreement. Besides, after exploring the origin of circumstantial verdict, we discover that the system gives consideration for public interests and private compensation on public construction, which is beneficial to the development of social economy. It is not yet abolished in Japan; therefore, we borrow the managing experience in Taiwan area for future recommendation of legislation.As to the judicial relief and preventing strike suit, we clearly explain that the trial class system belongs to the scope of legislator's freedom of discretion not the core content of procedural rights. Depending on the complexity of the case, flexible and simple procedures can be provided for establishing judgment power of administrative verdict; limit the instances of review and retrial; propose the establishment of case law system; hold a judicial symposium at initial stage for large amount of similar cases to relieve sources of lawsuit and avoid the effect of exclusion. Furthermore, we conclude that it is not appropriate to adopt the petition for appeal and penalty to avert strike suit, judging from the situation of new system in Taiwan area; judicial charge, procedural relief and legal assistance may be used.Finally from our major findings, we propose recommendations for step-by-step legislation of a comprehensive administrative litigation system.