- Publication Data:2008-03-14
How is administrative procedure related to people’s rights and interests?
Article 1 of the Administrative Procedure Act (hereinafter referred to as the Act) provides: “The act is written to ensure the administration is done in keeping with fairness, openness, and democracy and in accordance with the law so as to protect people’s rights and interests, enhance administrative efficiency, and increase people’s confidence in administration.” This article exemplifies the functions as well the legislative purpose of the Act. The following is a brief introduction：
- Carry out administration according to law: Administration according to law is the primary principle of the Administrative Act. A government employee who violates this principle shall be held for civil, criminal and administrative responsibilities and the government agency in question shall be responsible for national compensations.
- Ensure propriety of administrative action: An administrative action has the effect of establishing or creating personal rights and duties and this, in turn, shall be done in keeping with established procedure to ensure correct establishment of fact and the application of law.
- Provide people with the opportunity of participation: The release of an administrative decree and the taking of an administrative action are common practice of an administrative agency. These are closely related to people’s rights and interests. In nature, they are unilateral behavior of the administrative agency. In a modern nation, when a government agency makes a policy concerning people’s rights and interests, it should provide the people with an opportunity of participation; otherwise, it is inconsistent with democracy. This is especially true if the action is resulted from an application filed by the concerned party in accordance with the law (see the proviso of Article 34 of the Act). When the concerned party makes an application to an administrative agency in accordance with law, it may do so orally or in writing unless otherwise specified in the law or regulations (see the upper half of Article 35 of the Act). In the administrative procedure, the concerned party may present evidence and may also demand the administrative agency to investigate the fact or to examine the evidence (provisions of Article 37 of the Act). When an administrative agency makes a decision to restrict or to deprive people’s freedom or their rights and interests, it shall first inform, in accordance with the provisions of Article 37 of the Act, the concerned party to present his or her opinion. Unless a public hearing is to be held, the concerned party shall be given the opportunity for presenting opinions (Article 102 of the Act).
- Reduce administrative controversies and litigations: Article 109 of the Act says that for an administrative decision made through a public hearing, if the concerned party disagrees, he or she may file a litigation of annulment without the need of going through the procedure of appeal. If the party appeals to the decision-making agency for nullifying the administrative act and if it is turned down, he or she may also do it without going through the appeal procedure.
- Protect people’s rights and interests: Under democracy and the rule of law, all institutions are established with the protection of people’s rights and interests as the ultimate objective, and this is an indispensable function of any institution, including administrative procedure. In addition to the foregoing four items, the Act has many other provisions such as the right to read the file, to apply a government employee for removing himself from the case, to claim the fact or to declare the evidence. All these provisions are, without exception, intended to protect an individual’s rights and interests.
- Last updated:2008-03-17
- Count Views:523