| Summary: | 碩士 === 國立臺北大學 === 公共行政暨政策學系碩士在職專班 === 106 === According to Judicial Yuan Interpretation No. 498: “Consequently, within the purview of the powers guaranteed by the Constitution and laws, the local self-governing body is entitled to have self-governing and sovereign powers and the government agencies shall therefore respect such powers.” The Constitution of the Republic of China guarantees that local self-governments’ legislative and self-governing powers, which include autonomous organization, personnel management, fiscal autonomy, matter handling, and general planning, are to be regulated and established by local legislative bodies.
The supervision system as stipulated in Local Government Act requires that penal provisions in self-government ordinances not be publicized and implemented until they are approved by the central supervision facility. However, the regulations regarding approval review scope, determination method, remedy measures, approval period extension, and frequency are unclear. Although the Ministry of the Interior supplemented administrative interpretations on April 8, 2002, such interpretations indicate that self-government ordinances and provisions resolved and approved by local legislative bodies may be amended with suggested provisions in accordance with the approval agencies’ instructions. In addition, the approval agencies may add, delete, or amend the self-government ordinances and publicize and implement such changes without sending a letter to request the further review from the local legislative bodies. This type of practice shows that central agencies of supervision can use the approval system to alter the intention and decision made by local legislative bodies in forming self-government ordinances; such practice profoundly influences core matters related to local legislative powers. However, approval agencies are not entitled to local legislative powers and lack legitimacy that is based on resident autonomy. Such infringement may conflict with the Constitution of the Republic of China.
Regarding the remedy measures for supervision and approval of self-government ordinances, divergent views have been proposed in theory and practice. Theoretically, scholars contend that supervision of self-government ordinances is considered the administrative disposition from superior supervisory agencies. When local self-governing bodies disagree with the disposition, they may deem it as an infringement against self-government accountability and legally issue administrative litigations as a remedy. In practical cases, supervision measures on self-government ordinances do not mean to implement administrative dispositions of cancellation, abolishment, alteration, and stay on local self-government; instead, the supervision measures are remedy approaches that shall be adopted when controversies arise from local self-government legislative powers. This condition does not conform to the procedure explained in Judicial Yuan Interpretation No. 527, which stated that “after any and all remedies through litigation procedures at all levels are exhausted,” a petition for interpretation may be filed with the Judicial Yuan. Moreover, practical cases adjudicated by the Grand Justices Council indicate that self-government ordinances unapproved by supervision agencies are not in effect before they are publicized legally. If the self-government ordinances are not effective, they do not meet the requirement of Paragraph 5 of Article 30 of Local Government Act. In this case, a petition for interpretation shall not be accepted. Therefore, when supervision agencies provide no approval of self-government ordinances, local self-government are likely to encounter a problem of inability to file a remedy.
Through literature review, in-depth interview, and analysis of practical operations, this study proposed recommendations for research and law amendments from the perspectives of legal system and practice. The results are presented in the expectation to mitigate the gap of the said approval system.
Keywords: local self-government, local self-government legislative power, supervision of self-government legislation, self-government ordinance, approval
|
|---|
