A Legal Institutional Analysis on Public Nuisance Dispute Resolution Procedures

• Main Authors: Yung-Jyh Jeng, 鄭永志
• Other Authors: Ying-Lei, Charles, Chang
• Format: Others
• Language: zh-TW
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/01753413475387822293

碩士 === 世新大學 === 法律學研究所(含碩專班) === 102 === The Public Nuisance Dispute Mediation Act (PNDMA) was enacted since 1992 in Taiwan. It renders to settle the public nuisance disputes of effect, but there still are gradually occurred pollution-disputes caused fight of cases. In 2008, there was serious air pollutions event outbreak in Chao-Liao Village of Kaohsiung County, both of Environmental Protection Administration of Executive Yuan and Environmental Protection Bureau of Kaohsiung County couldn't identify the sources of pollutions. The victims had to go on the street for protest and fight for their own rights. The event has pointed that something was wrong with the PNDMA, and this thesis uses empirical analysis to clarify the main problems and making suggestion for improvement. The PNDMA was based on Alternative Dispute Resolution (ADR), so to make the description for it first, the main characteristics, classification and many advantages included. All the non-contentious programs for public nuisance dispute in Taiwan were illustrated and analyzed, especially detailed for the procedures of mediation and arbitration of the PNDMA. (The “arbitration” is not the same as the one of the Arbitration Law of ROC) There are disadvantages of the act of the two stages of the committees being with almost the same characters and the experts in Committees being not thorough enough from the analysis. From the summarize of cases of the mediation and arbitration (PNDMA) procedures in Taiwan, The processes didn’t not make best use of the characteristics of ADR, but still follow the traditional cause and effect relationship. Addition to the regulation problems, it do not lead the disputes resolution results to implement the social equity and environmental justice. To follow the study of Environmantal Libility Law at Environmental Protection Administration in Taiwan as the main reference with United States institution, introducing the Environmental ADR mechanisms in United States were well developed. After that, by discussing the empirical analysis on the mediation processes of United States, we can perspective the characteristic of how best to use ADR. Not just to settle the environmental disputes, but to create a solution to let the pollution of perpetrators, victims, as well as stakeholders are all winners. We propose the suggestion that the arbitration (the Arbitration Law of ROC) is the better choice if there will be the PNDMA modified, because of the two reasons of this study. First, the characteristic of arbitration proceedings are in accordance with them of the public nuisance dispute event. And the second is the arbitration program can compensate for the shortcomings which get from the analysis of the regulatory regime and summarize the results of empirical cases.