摘要
征收相关协议之法律性质如何,在运用公私法契约区分理论时,应特别考虑各地法制脉络及社会背景之差异。就我国台湾地区的"协议价购"而言,需用土地人与土地所有权人之间并无私法自治、缔约自由之运作空间,故应评价为行政契约,有纠纷时应循行政诉讼程序解决。就我国大陆的"补偿协议"而言,由于补偿是公法上的弥补机制,是征收程序不可分割的一部分,因此为典型的行政契约,亦应由行政庭依照《行政诉讼法》裁判纠纷。
When referring to the legal nature of the expropriation-related agreement, based on application of contract theories of the public law and private law, different legal system and social background in separate area should be especially taken into consideration. As for the‘negotiated price’ in Taiwan Region, since there is no space for the land user and the land owner to make any contract under private law autonomously, it should be deifned as an administrative contract and the administrative litigation procedure should be applied to when dispute occurs. While for the ‘compensation agreement’ in mainland, since the compensation is a remedy mechanism in public law, which is an integral part of the expropriation procedure, it should be recognized as a typical administrative contract and related disputes should be solved by administrative tribunals in according with the Administrative Litigation Law.
出处
《行政法学研究》
CSSCI
北大核心
2014年第1期89-98,共10页
ADMINISTRATIVE LAW REVIEW
关键词
征收相关协议
法律性质
行政契约
行政诉讼
Expropriation-related Agreement
Legal Nature
Administrative Contract
Administrative Litigation
