Interpretation
J.Y. Interpretation |
NO.295
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Date |
1992/3/27 |
Issue |
Should the disciplined subject be allowed to bring administrative litigation to appeal for review resolution of the Review Committee on the Discipline of Accountants of the Ministry of Finance? |
Holding |
1 The review resolution of the disciplinary action taken against a specific accountant, made by the Review Committee on the Discipline of Accountants of the Ministry of Finance, is equivalent to the final decision of administrative appeal in essence which cannot be appealed through administrative appeal and re-appeal. The disciplined subject should be allowed to bring administrative litigation directly in order to accord with the principle of the people's right of instituting legal proceedings guaranteed by the Constitution, if he deems the said resolution illegal and damaging to his right.
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Reasoning |
1 The people's right to administrative appeal, guaranteed by the Constitution, aims to make the government authority, which make an administrative act, or its superior, self-monitor its own illegal or inappropriate act to protect the people's right and interest. If other venues of administrative relief, prescribed by the law, are sufficient for such purpose, then they are equivalent to the procedure of administrative appeal in essence and it will be redundant to initiate the said procedure. Article 1 of the Administrative Appeal Act prescribes:" A person, who deems the administrative act of the central or local government authority illegal or inappropriate and whose right or interest suffers in consequence, shall initiate the procedures of administrative appeal and re-appeal in accordance with this Act. But if the rules of other laws provide otherwise, then they should have precedence." The "otherwise" situations should include the one above. However, it should not be interpreted to mean that if the procedure of administrative appeal or re-appeal is not initiated in the first place, then the direct proceeding of administrative litigation is also barred, even though all the other procedures of administrative relief equivalent to administrative appeal and re-appeal have been exhausted already. The Ministry of Finance, pursuant to the Accountant Act, sets up the Committee on the Discipline of Accountants and the Review Committee on the Discipline of Accountants. The review resolution of the disciplinary action taken against a specific accountant by the Review Committee on the Discipline of Accountants, prosecuted by the Ministry of Finance, is an administrative act. The appeal for review from the disciplined accountant is equivalent to the procedure of administrative appeal in essence. The review resolution of the Review Committee on the Discipline of Accountants is equivalent to the final decision of administrative appeal and it will be redundant to initiate the normal procedures of administrative appeal and re-appeal against it. According to the above illustration, the disciplined subject should be allowed to bring administrative litigation directly in order to accord with the principle of the people's right of instituting legal proceedings guaranteed by Article 16 of the Constitution, if he deems the said resolution illegal and damaging to his right. 'Translated by Su-Po Kao.
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