Research On The Administrative Appeal System During The Republic Of China

During the period of the Republic of China,if the rights or interests of the people are harmed as a result of the illegal or improper administrative sanctions taken by the government,they may file a petition with a specific governmental department in accordance with the law to request relief.Taking a comprehensive view of the existing studies,on the one hand,after the founding of the Republic of China,the overall number of relevant literature is very scarce,showing an obvious research gap;on the other hand,the special research in the period of the Republic of China is also incompete,mainly concerntrated in the period from the promulgation of the administrative appeal law in 1930 to the first amendment of the administrative law in 1935,which did not fully show the formation process of the previous period and many changes in the following ten years.Moreover,from the perspective of research paradigm,it emphasizes practicality rather than theory,and its depth and accuracy are obviously insufficient.With regard to the actual effect of the operation of the appeal system in the period of the Republic of China,there is also a lack of macro judgement with sufficient data to support.Based on these facts,this paper determines a more comprehensive research scope covering the period of the Beiyang government and the government of the Republic of China,as well as the research methods based on legal hermeneutics and empirical analysis.In order to comprehensively present the theory and practice of the administrative appeal system in the period of the Republic of China,except for the introduction,the text is divided into six chapters,which adopts the toal structure.Frist,explore the origin of the appeal,sort out the legal basis and main characteristics of the appeal,and then analyze the various links of the appeal system in details.The details are as follows:Chapter one: what is appeal?According to the research,the word "appeal" does not originate from ancient Chinese,but is a system name specially created for the establishment of administrative relief system after Meiji restoration in Japan.It can be seen that,as a legal term,the nature of pleadings is citizens' administrative appeal right,and the principle of pleadings according to law must be adhered to in the exercise of pleadings right.The function of appeal is to relieve people's right or interest damaged by administrative action;the object of appeal is generally the superior office of the original disciplinary office;the content of the petition is to require a specific office to review and determine the reasonableness and appropriateness of the original sanction in accordance with administrative procedures.In the period of the Republic of China,appeals not only had a clear constitutional basis,but also the beiyang government and the nationalist government successively issued special appeals laws to regulate and guarantee appeals.Compared with other relief systems or procedures with similar functions in the same period,appeals have the advantages of low threshold,low cost,high efficiency and procedural guarantee,and are more in line with people's complaint habits developed in history,so it is the most effective and simple administrative relief method in the period of the Republic of China.Chapter two: matters of appeal.Different from Japan's administrative appeals law,both of the two appeals law in the Republic of China clearly established the normative model of generalism,which was conducive to opening the appeals channel to absorb administrative disputes to the maximum extent.At the same time,the jurisdiction clause in the law of appeals limits and shrinks the disciplinary office,which reflects some legislative techniques.In accordance with the positive provisions of the law of appeals,the abstract criteria for judging appeals may be determined as illegal or improper administrative actions that harm the rights or interests of the people.Practice,appeals and item scope by the judicial yuan interpretation,the administrative court precedents and all levels of the administrative office document to reverse that administrative regulations,internal administrative act,punishment of organs of self-government,administrative omission and administrative fact behavior,judicial judgment,the labor dispute arbitration,official personal illegal and the state and citizens' private rights disputes between the nine categories,such as items out.In order to visually present the actual distribution of appeals at that time,based on 1288 appeals and reappeals,according to the current classification standards,the fields involved in appeals and the issues involved in appeals were counted.Chapter three: the people's complaints.The person whose rights or interests are directly harmed by illegal or improper administrative actions shall not be limited to the other party of the administrative department,but also the interested party.An individual citizen or foreigner may file a complaint separately;a number of citizens may file a joint petition on the basis of the same punishment,provided that representatives of less than three persons shall be elected and letters of appointment of representatives shall be submitted;legal persons and non-legal organizations,such as individual industrial and commercial households,Chambers of commerce and industry,etc.file appeals,which are also common in practice.The complainant shall have the right to file a lawsuit,the right to know,the power of agency and the right to cancel the lawsuit.The procedural requirements of the pleadings law for people's complaints are limited to the filing of pleadings within the statutory time limit.In v.period,the period of beiyang government appeals regulations for 60 days,the national government period appeals method shortened to 30,appeal deadline shall be the partners of punishment or the date following the decision to calculate,and deduct the petitioner in road,when the end of the time limit for the rest days is counted in the other laws and regulations have special provisions,those provisions shall be followed.If the complainant fails to meet the time limit due to accident or fault,he shall declare the reason to the office accepting the complaint and obtain permission.It is worth noting that the interpretation of the judicial court has also established a wide range of flexible rules,in which people lodge a complaint to a non-competent office by mistake,or to the original disciplinary office,or even simply declare an objection.As long as the objection is expressed within the statutory time limit,the complaint is considered legal and valid.This shows that the appeal system has the spirit of tolerance in the initial period,and the administrative relief nature of appeal provides the possibility and legal basis for these flexible rules.Pleadings are the core elements of the people's litigation.As an important document,the procedure of pleadings must comply with the law.The people's lawsuit will produce three legal effects.First,the administrative sanction can break through the substantial determination,and restore or grant the cancellation or alteration right of specific official office.Second,to accept the appeal of the office must be for the review of the decision of the binding force.Third,the office accepting the petition may stop the execution in place due to necessary circumstances.Chapter four: jurisdiction of appeals.In the period of the Republic of China,the level of appeals followed the two-level system,that is,the people could file appeals if they did not accept the punishment.If they did not accept the decision,they could file another appeal.The jurisdiction of appeals is based on the principle of subordination,that is,the jurisdiction of appeals is determined according to the command and supervision power of the higher office over the lower office.When the people file a complaint against a central or local government office not listed in the law of appeals,they shall refer to the subordination relationship according to the level of their jurisdiction.Established in accordance with the special laws and regulations,specifically in charge of a class of administrative events or exist only in special period of special partners,such as collection of the review committee,southwest of the council,the administrative supervision commissioner's office,alcohol and tobacco bureau,land tax administration,the department of health,government,etc.,in accordance with the judicial yuan interpretation and executive orders,rules of jurisdiction applicable mutatis mutandis to accept the administrative appeal case.The principle of subordination is still applied to appeals for disciplinary actions by other agencies other than those listed in the law of appeals and to the jurisdiction rules applicable to the acceptance of appeals by special agencies.The cause of litigation is the administrative sanction of the government office,which is generally under the jurisdiction of the government office at the immediate higher level.The administrative organization system is well organized and its duties are statutory.Only the general local office and the special office directly under the central government may have overlapping powers for dealing with a particular kind of special administrative affairs.Instead of submitting a power dispute to the national government for adjudication,it is converted into a question of law application based on the jurisdiction provisions of the law of appeals and resolved by means of interpretation by the judicial court.Chapter five: case handling.The departments of the central and local government offices that are specifically responsible for handling appeals shall assist the chief in handling one of the administrative affairs on a daily basis,and have frequent and close business contacts with the lower government offices and their corresponding departments.In order to fundamentally seek change,the ministry of industry and commerce took the lead in promulgation of the "rules of the appeals committee," the establishment of the appeals committee,the division to handle appeals.The independence and professionalization of the litigation and trial committee is of great significance to improve the standardization and impartiality of the trial of appeals,speed up the efficiency of the handling of appeals and improve the quality of the decision of appeals,so it can be promoted nationwide.Before examining the substantive issues involved in the case,the office shall first transfer the case to the specific department or agency for jurisdiction investigation,and then decide whether to accept the case.At the same time,the original disposition or the decision after the official office receives the copy of the petition,it shall also actively fulfill the obligation of defense and filing.On the basis of the principle of written hearing,the official office of the court of appeal shall be established,which shall generally be decided at a meeting of the court of appeal.The appeals office shall adhere to the principle of comprehensive review,adhere to the combination of fact review and legal review,and the combination of entity review and procedure review,and shall judge according to all materials.Chapter six: appeal decision.The decision of appeal is a legally binding judgment made by the court of appeal on whether there is any reason for the claim of the person of appeal and whether the original punishment or decision is illegal or improper.The appeal decision is mandatory.The appeal office must make a decision,except that the original sanction office automatically cancels the original sanction or the complainant withdraws the appeal.If the office considers that the petition should not be entertained,it decides to dismiss the petition;If,after the review of the acceptance of the petition,the appeals office considers that the petition or repetition is unjustifiable and that the original sanction or decision is lawful and appropriate,it shall decide to maintain it;If,after the acceptance of the appeal,the appeals office considers that there are grounds for the appeal or reappeal,it shall decide to revoke the original sanction or decision;if,after the examination of the acceptance of the appeal,the appeals office considers that the appeal or reappeal is partly justifiable or partly unjustifiable,and that the original sanction or decision is partly illegal or improper,it shall decide to change it.According to empirical analysis,the rate of redress of claims is generally 20%,and that of the ministry of economic affairs is nearly 40%,which indicates that the system of redress of claims can actually play a relief role in the period of the Republic of China.If the decision of appeal is an obligatory act,the written decision shall be made and made into an original and served on the complainant and the original sanction official office according to law.If the appeal decision is not valid,the original sanction and the original decision shall not be altered or revoked by the office according to the authority;appeals decision the office may not arbitrarily alter or cancel the appeals decision it has made;in addition to accepting a repetition according to law,the superior office that decides on the office may not make the decision on the office more decisive by its supervisory power;other government agencies,ordinary courts,unless there is a legal basis,also can not violate.Exceptional circumstances has two,one is the original punishment,the original decision or appeals after partners to appeal,and a final determination of the appeals jury found errors,or because of his situation and the revocation of the original sanction for new sanctions,if the petitioner and the rights or interests of petitioner and subject to any damage is not enough,since to the supervision and the role of the adults regime or the other as the disposal.Second,if another new fact occurs,that is,after the determination of the appeal decision,another fact which is different from the original cause of the disposition will occur,which has nothing to do with the effect of the original decision,and of course,it may be another disposition by the competent authority.The appeal decision is still an administrative sanction in nature.If the appeal or interested party refuses to accept the appeal decision,it may file another appeal;if the party refuses to accept the improper disposition,the final decision shall be made by appeal;if the party refuses to accept the illegal punishment and decides to appeal again,or accepts the appeal and the official office of the party delays in deciding,it may file an administrative lawsuit with the administrative court;an administrative action may be accompanied by a claim for damages.