論行政訴訟上和解－以德國法之比較為中心

Abstract

2018年，我國公平交易委員會與美商高通公司成立公平交易法史上第一次行政訴訟上和解。但隨之而來的，是眾多的批評與爭議。以此為出發點，透過比較德國法的觀點，檢視並論證我國行政訴訟上和解有關性質、合法性要件、效力與救濟途徑的法律爭議，本文有以下幾點發現： 第一，藉由法律的解釋與處分權主義的適用，證明我國行政訴訟上和解的確具備訴訟法與實體法雙重性質。另外，因訴訟上和解的成立不以實體裁判要件為前提，所以和解的實體法部分，尚得納入私法性質的和解契約。第二，因私法請求權也可納入和解內容，和解標的可超越訴訟標的。但另一方面，依行政訴訟法僅要求和解當事人的處分權以「訴訟標的」為限，出現訴訟上和解標的與處分權標的範圍不一致的現象。本文認為可透過類推適用，將「訴訟標的以外之事項」納入處分權標的範圍。 第三，行政訴訟上和解非法院的判決，判決的確定力不能適用於訴訟上和解。至於訴訟上和解的效力要如何「準用」判決的確定力，可從禁止濫用權利與行為矛盾的角度切入，不允許當事人先透過訴訟上和解解決訴訟標的所生的爭執，事後又於後訴主張「已解決的訴訟標的」。第四，透過對行政訴訟法第223條的解釋，本文認為除了撤銷，和解若有其他嗣後無效的原因，當事人不得請求繼續審判。

In 2018, Taiwan's Fair Trade Commission and the U.S. company Qualcomm established the first settlement on administrative litigation in the history of fair trade law. However, it was followed by numerous criticisms and controversies. Taking this as a starting point, this article examines and discusses the legal disputes over the nature, legality requirements, effectiveness, and remedies of settlements in administrative litigation in Taiwan by comparing the perspectives of German law, and makes the following findings: First, the interpretation of the law and the application of the disposition doctrine demonstrate that settlements in administrative litigation in Taiwan have the dual nature of litigation law and substantive law. In addition, since the establishment of litigation settlement is not premised on the requirements of substantive adjudication, the substantive law part of the settlement has to be incorporated into the private law nature of the settlement contract. Secondly, since private law claims can also be included in the settlement, the subject matter of the settlement may exceed the subject matter of the litigation. On the other hand, according to the Administrative Litigation Act, the parties to a settlement are only required to limit their right of disposition to the "subject matter of the litigation", which results in the inconsistency between the subject matter of the settlement and the subject matter of the right of disposition in the litigation. This article suggests that "matters other than the subject matter of the litigation" can be included in the scope of the subject matter of the right to dispose by analogous application. Third, a settlement in litigation is not a judgment of the court, and the binding effect of a judgment cannot be applied to a settlement in litigation. As to how the validity of a litigation settlement should be "applied" to the binding effect of a judgment, it can be approached from the perspective of prohibiting the abuse of rights and behavioral contradictions, and disallowing the parties to first resolve the dispute over the subject matter of the litigation through a litigation settlement, and then later claim that the "subject matter of the litigation has already been resolved" in a subsequent lawsuit. Fourth, by interpreting Article 223 of the Administrative Litigation Act, this article argues that, in addition to revocation, a party may not request a continuance of the trial if the settlement is subsequently invalid.