| Abstract: | 行政契約係將私法的契約概念導入公法領域，使國家機關得以彈性之作為達成公共任務，而成為行政行為的方式之ㄧ。我國將其納入正式法制之時程，雖晚於同為歐陸法系之德、法二國，但應用於實務上，因國內政治氛圍經由民主轉型後而趨於熱絡。諸如：稅務協談、行政和解、委託外包、公害防治…等，皆有其應用之餘地。自民國86年精省修憲後，隨之配合制定之地方制度法，明確將地方自治團體所從事之任務二分為自治事項與委辦事項；經由自治事項之確立，冀望地方自治團體於落實「分權化」之理念，使各地方政府在權能授與下發揮因地制宜之在地特色。然而，由於地方制度法第21、24條對於跨域自治事項之規範密度不足，僅就管轄權稍加提及，並未明確規範得以何種具體模式處理跨區域事務。經由上述之問題意識，部分學界與實務界皆肯認應用行政契約處理跨區域事務，為兼顧自主性與效能之較佳模式。故本文之研究將完成以下三個研究目標：1.行政契約與跨區域域事務之本質探討2.解決跨區域問題得採行模式之探討3.以行政契約模式進行跨域合作之法理探討本文之研究屬政治學領域中之「正式－法制研究途徑」，採用文獻分析法與比較分析法。首先，本文於第二章與第三章就行政契約與跨區域事務進行本質上之探討，對於國內外相關文獻進行蒐集，將相關理論與法制規範進行分析，並援引國外制度之發展經驗，以探討其適用於我國之可行性。其後，於本文第四章與第五章就行政契約應用於跨區域事務處理之法律效力與行政契約本身於締約或履約中之問題加以探討，對於得以行政契約處理跨區域事務之情形予以列舉並將其類型化，並就現行我國法律所規範之條件中，探討跨域合作契約之效力所及與其限制。另外，就行政契約締約當事人、契約標的、債務履行、債權取得與締約責任分擔等相關問題，於我國法制基礎下，說明實務應用上可能面臨之限制。最後，於本文第六章將導出研究結論，對於研究過程中發現之其他相關問題，與未來相關學術後續研究或實務發展上之建議加以說明。
Abstract Administrative contract is one of administrative behaviors that introduces concept of private laws into the domain of public laws and enables state organs to achieve their public task by flexible behaviors. The time our county included it into official legal system was later than Germany and France of the European Continent’s legal system. However, due to the political atmosphere that has experienced transition to democracy, the application to practical affairs is becoming more frequent. In cross-area affairs such as tax consultations, administrative settlement, contract out, prevention of public nuisances, there is room for its application. Since the streamlining of Taiwan Provincial Government in 1997, the supporting Local Autonomy Act has clearly divided the tasks of local autonomy bodies into autonomous affairs and delegated affairs. Through the establishment of autonomous affairs, it is hoped that the local autonomy bodies could put the idea of “decentralization” into practice that every local government could bring the full play of characteristics of its locality under the mandate of power and capabilities. However, because Article 24 and Article 25 of Local Autonomy Act have some loopholes in regulating cross-area affairs and mention only a little about jurisdiction right, there are no clear regulations on the concrete models for dealing with cross-area affairs. Based on the recognition of above-mentioned issues, some of academic circles and practical circles have acknowledged that the application of administrative contracts to deal with cross-area affairs was a better model that gave consideration to both autonomy and effectiveness. Therefore, the research was going to achieve following three objectives:1.The exploration of natures of administrative contract and cross-area affairs;2.The exploration of possible models for solving cross-area problems;3.The exploration of legal theory of implementing across-area cooperation by an administrative contract. The approach of research is “formal-legal approach” in the domain of political science. It adopted methods of documentary analysis and comparative analysis. Firstly, it explored the natures of administrative contract and cross-area affairs in Chapter I and Chapter II in which the related theories and legal norms and regulations were analyzed after collecting related documents at home and abroad. Citing the experiences of development in foreign countries, it also explored the feasibility of application of administrative contract in Taiwan. In Chapter IV and Chapter V, the effect of law of application of administrative contracts to handle cross-area affairs and problems in reaching agreement or fulfilling agreement of administrative contract were explored and discussed, the conditions of handling cross-area affairs by administrative contracts were listed and divided into types and the effects and limits of cross-area cooperation contracts in the conditions stipulated in current laws of Taiwan were also explored. Besides, it described the limits under our legal basis that may face in practical application of parties, targets, fulfilling debt, acquisition of creditor’s rights and responsibility sharing of reaching agreements in administrative contracts. The conclusions were introduced and the issues found during the process of research, related academic follow-up researches or the recommendations for the development of practical matters were described in Chapter VI. |
