| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 105 === This thesis is aimed at developing the framework that addresses the due process of the hearing for major construction developments. After reviewing the Judicial Yuan Interpretations and exploring the nature of hearing, this thesis categorizes the hearings into two models and elaborates a proper way to design significant factors of the hearing. With an approach of the comparative legal study on the administrative law in the jurisdictions of the United States and Germany, this thesis focuses its main theme on the major construction developments.
Previously the due process of administration was not deemed as a constitutional right, and its vague standard led the judgement to be arbitrary, when identifying the due process of hearing. Nevertheless, the Judicial Yuan Interpretation No. 709 breaks the deadlock and articulates that the due process of hearing can be identified, only when the main purpose and all significant factors of the process are included into the consideration.
More specifically, by reviewing the comparative practices, the author concludes two models of the hearing — the right-protecting model and the participation-in-decision-making model, which outline the main purpose of the hearing. The main purpose further forms as the basis in designing the significant factors of the hearing, which are highlighted in this thesis as: “the hosting agency of the hearing and the host”, “participants”, “the advance notice and the disclosure of information”, and “the binding effect of the hearing”.
The finding of this research holds the hearing of construction project aligning with the participation-in-decision-making model, since its purpose is to hear the public opinion generally; to conduct hearing focusing on the fairness and independence of the host; and that the hearing of land-use should conduct quasi-judicial process by local government.
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