The full text of the Administrative Procedure Law briefly analyzes the comparison of the Administrative Procedure Law in Mainland China and Taiwan
Author: Anonymous
The relevant provisions of the Taiwan Administrative Procedure Law and the Civil Procedure Law The references are more explicit than those of mainland China. Mainland China only stipulates in principle in Article 114 of the Judicial Interpretation of the Supreme People's Court: "In addition to the provisions of the Administrative Procedure Law, when hearing administrative cases, the People's Court may refer to the relevant provisions of the Civil Procedure Law if there are no provisions in this law." In fact, administrative cases It is very uncertain which provisions of the Civil Procedure Law can be referred to for each specific step of the litigation procedure. It can be seen that the reference to the provisions of the Civil Procedure Law in the Mainland is actually a means to make up for the shortcomings of the Administrative Procedure Law. Since the cited provisions have not been clarified, these provisions It has not become an integral part of the Administrative Procedure Law. In comparison, Taiwan's Administrative Procedure Law lists in detail which provisions of the Civil Procedure Law can be cited for each specific procedure in administrative litigation, making it easier to operate and thus making these provisions an integral part of the Administrative Procedure Law.
3. Differences in the administrative litigation systems and administrative litigation law structures between the Mainland and Taiwan regions
1. The differences between the administrative litigation systems in the Mainland and Taiwan regions
Currently There are two typical administrative litigation systems, also known as the unitary system and the dual system of administrative litigation. The unitary system is also called mergerism, represented by Britain and the United States; the dual system is separatism, represented by countries with civil law systems such as France, Germany, and Austria. The administrative litigation system in Taiwan is a typical separatist one. Administrative litigation cases are under the jurisdiction of the High Administrative Court and the Supreme Administrative Court. The Administrative Court is independent of other ordinary courts (but what is unique is that it and the ordinary courts are both subordinate to the "Judicial Yuan"). And the administrative litigation was changed from the previous one level and one instance to two levels and two instances. This is to meet the needs of the development of the times. (Note: During the period when the Kuomintang regime was entrenched in the mainland, the number of administrative cases was very small. In the 15 years from 1933 to 1947, the Executive Yuan accepted less than 48 cases per year on average, with the minimum number of cases being only 2. , the maximum is only 82 cases. Therefore, only the central administrative court at the first level is sufficient to meet the needs. After the Kuomintang government came to Taiwan, it continued to use the old administrative litigation system, and it was only in the past two or three decades that the first-level first-instance system was exposed. The data is quoted from "Administrative Relief and Administrative Law (1)", page 313) is also to further provide sufficient relief to the parties. Of course, this is also closely related to the vigorous promotion of administrative law scholars in Taiwan. The administrative litigation system in mainland China belongs to the merger system, that is, a unitary system. Both administrative cases and ordinary cases are under the jurisdiction of ordinary courts. But what is more unique is that there is an administrative tribunal in the ordinary court, which is specifically responsible for the trial of administrative cases. Although some scholars in mainland China call for the establishment of an independent administrative court[1], it is very difficult under the current circumstances. There are four levels of ordinary courts in mainland China, and there are two levels of final adjudication. There is a problem of level jurisdiction (the Administrative Court of Taiwan has two levels, and the first instance is under the jurisdiction of the High Administrative Court, so there is no issue of level jurisdiction).
The Taiwan Administrative Court is affiliated with the Judicial Yuan, and the justices of the Judicial Yuan have the power to review constitutional violations. Therefore, Article 252 of its Administrative Procedure Law stipulates that the Supreme Administrative Court shall be convinced of the applicable law when it accepts cases. If there is any doubt that it violates the Constitution, a decision may be made to stop the proceedings and request a meeting of the Supreme Court for interpretation. Mainland judges do not have the power to review constitutional violations, and Article 53 stipulates that when administrative regulations conflict with each other, they may request the State Council for a ruling. This provision is considered by scholars to be the most discordant note in mainland China's Administrative Procedure Law.
2. There are differences in the structure of the administrative procedure law in mainland China and Taiwan
The structure of the mainland administrative procedure law and the mainland civil procedure law are similar, divided into general principles, scope of cases, jurisdiction, There are 11 chapters in total including litigation participants, evidence, prosecution and acceptance, trial and judgment, execution, tort liability, foreign-related administrative litigation, supplementary provisions, etc.
The Administrative Procedure Code of Taiwan is divided into: General Provisions, First Instance Procedure of the High Administrative Court, Appeal Procedure, Protest Procedure, Retrial Procedure, Retrial, Preservation Procedure, Enforcement Procedure, Supplementary Plan*** 9 ed.
Taiwan’s administrative litigation law system is organized into trial procedures of different levels and nature. The scope of the case, jurisdiction, parties, and specific litigation procedures such as service, parties' pleadings, time periods, litigation files, litigation fees, etc. are all included in the general provisions. This is concise and easy to operate.
In addition, overall, the administrative procedure laws of both parties have content that the other party does not have.
The unique contents of the Mainland Administrative Litigation Law include: liability for tort compensation, foreign-related administrative litigation, and the principles that should be followed in the trial of administrative cases in the general provisions. Unique features of Taiwan's Administrative Procedure Law include: settlement in ordinary first-instance litigation procedures, first-instance summary litigation procedures, protest procedures, retrials, etc.
Although the Mainland Administrative Procedure Law also has general provisions, its content is not like the General Provisions of the Taiwan Administrative Procedure Law, which includes all the different norms that do not belong to the first instance, second instance, retrial and other procedures. . The General Principles of Administrative Litigation Law in Mainland China actually only have three parts, namely the purpose of administrative litigation, the scope of accepting cases, and the principles of administrative litigation. It can be seen that the General Provisions of the Mainland Administrative Litigation Law are essentially the program of the law, and there are obvious differences in the understanding of the General Provisions between the two parties.
IV. Differences in the legislative purposes of the Administrative Litigation Laws of the Mainland and Taiwan Region
Both the Administrative Litigation Laws of the Mainland China and Taiwan Region concisely summarize the legislative purposes in Article 1 of the General Provisions. The Mainland Administrative Procedure Law states that its purpose is: "To ensure that the people's courts hear administrative cases correctly and promptly, to protect the legitimate rights and interests of citizens, legal persons and other organizations, to safeguard and supervise the exercise of powers by administrative agencies, this law is enacted in accordance with the Constitution." According to this provision. , legislators have given the Administrative Procedure Law a distinct color of power control. This is also consistent with the mainstream thinking in mainland administrative law, that is, both the power control theory and the balance theory believe that the main function of administrative procedure law is to control and supervise the effective exercise of administrative power. Because of this, the promulgation of the Administrative Procedure Law has a milestone significance in creating a new situation for China's democracy and rule of law in the development of Chinese administrative law and even the entire legal science. The Administrative Litigation Law of Taiwan states that its purpose is: "Administrative litigation aims to protect the rights and interests of the people, ensure the legal exercise of state administrative power, and enhance judicial functions." In comparison, the absence of the word "supervision" makes it more controlling. Rather, it focuses more on the balanced development of the role of administrative litigation law, which not only ensures the effective operation of administrative power, but also focuses on safeguarding the legitimate rights and interests of the people. But it adds the phrase "enhancing judicial functions". Including it in the general provisions reflects that Taiwan's administrative litigation legislation pays attention to its judicial operability.
In short, the legislative purposes of the administrative procedure laws in mainland China and Taiwan seem to be similar, but in fact there are major differences, which will have a greater impact on future provisions.
5. Differences in the scope of administrative litigation cases in mainland China and Taiwan
1. Different ways of determining the scope of cases
The Administrative Litigation Law of Taiwan Region The scope of the case is determined in a general way. Article 2 of it stipulates: For disputes under public law, unless otherwise provided by law, administrative litigation may be initiated in accordance with this law. It also handles two special situations, that is, Article 9 stipulates that lawsuits filed by people to safeguard public interests can be accepted if their own interests have not been infringed. It also stipulates that disputes over election and recall shall be handled by the Administrative Court (these are also disputes under public law).
The scope of cases accepted by the Mainland Administrative Litigation Law adopts a combined form, that is, it first makes a general provision in Article 2 of the Law, and then enumerates it in Article 11 of the Law (the content is enumerated first, and then Listed by law, and finally a specific exclusion list is made in Article 12 of the law).
2. The scope of cases accepted is different
The Mainland Administrative Litigation Law stipulates: When citizens, legal persons or other organizations believe that the specific administrative actions of administrative agencies and administrative agency staff infringe upon their legitimate rights and interests, The right to bring proceedings under this Act. Here it requires that first of all, it should be a specific administrative act of an administrative agency, while abstract administrative acts are excluded from the scope of the case. Secondly, only those whose rights and interests have been infringed have the right to sue. Thirdly, the judicial interpretation of the Supreme People's Court also defines "legitimate rights and interests" as "Limited to two categories: personal rights and interests and property rights, while political rights and educational rights are virtually excluded. Moreover, when public legal persons who are not administrative entities, such as public schools and public hospitals, exercise their powers and infringe upon the legitimate rights and interests of citizens, legal persons and other organizations, the legal basis is not very clear whether lawsuits filed against them are admissible.
The scope of administrative litigation in Taiwan is much wider than that in the mainland, and it is believed that any disputes under public law can be litigated. Some scholars in Taiwan define public law as the law that regulates public power. The scope of the disputes caused by it is obviously much wider than the scope of disputes caused by the exercise of administrative power. (Taiwan’s Administrative Litigation Law stipulates that public law contract disputes and election disputes can also be litigated. Even lawsuits filed by people whose interests have not been infringed on public law disputes can be accepted under certain circumstances.
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Mainland my country does not recognize the division of public and private law, so it is obviously inappropriate to define the scope of cases in the Administrative Procedure Law as disputes under public law. However, the shortcomings of the mixed model of stipulating the scope of cases adopted by mainland my country's Administrative Procedure Law are also very obvious. As Taiwanese scholar Guan Ou said: "The advantage of the enumeration doctrine is that it clearly stipulates, prevents abuse of lawsuits, and eliminates confusion. Only There are more and more emerging undertakings in society, and administrative matters are extremely complicated. It is inevitable to omit the list, and it cannot adapt to the ever-changing administrative matters. If it is not within the scope of the list, there will be no statutory remedy for the damage to rights caused by illegal acts. As for enumerationism, its gains and losses are opposite to enumerationism. Only in terms of the trend of the administrative litigation system and the situation of legal thought and social progress, it tends to enumerationism. "Swiss public law scholar Rucker believes that enumerationism is. Administrative litigation is a transitional means to achieve generalism. In fact, the Administrative Procedure Law in Taiwan has also made continuous breakthroughs from the enumeration principle through the judicial organs. For example, the early opinions of the Judicial Yuan and the Administrative Court believed that the relationship between civil servants and the state is a special power relationship, and civil servants are not allowed to file administrative lawsuits for punishments suffered in their status. , however, after repeated interpretations by the justices, civil servants may file administrative lawsuits for relief regarding disputes over property rights under public law, as well as removal from office or sanctions that have a significant impact on the status of civil servants, which ultimately leads to the transition from enumerationism to generalism. The judicial practice of administrative litigation in mainland China is actually constantly breaking through the boundaries given by the enumeration doctrine. Moving towards generalism is a historical necessity.
Furthermore, abstract administrative actions should eventually be included in the scope of administrative litigation. At present, countries such as the United Kingdom and the United States have conditionally included it in the scope of administrative litigation. Due to the adoption of the generalization doctrine in Taiwan, it has actually been included in the scope of administrative litigation. Compared with mainland China, there is some gap.
6. The regulations on the jurisdiction of administrative litigation are different between the mainland and Taiwan.
Due to its vast territory and four levels of courts, the jurisdiction of the mainland is more complex. It can be divided into level jurisdiction, regional jurisdiction and adjudication jurisdiction. The principle of plaintiff versus defendant applies to geographical jurisdiction, but it also stipulates several special geographical jurisdictions, mainly including: in cases after review, if the review authority changes the original specific administrative action, the plaintiff shall choose the jurisdiction where the administrative agency that originally made the specific administrative action is located. The people's court or the people's court where the reconsideration authority is located shall have jurisdiction; lawsuits filed against administrative compulsory measures that restrict personal freedom shall have the jurisdiction of the people's court where the defendant is located or where the plaintiff is located. From the above provisions, it can be seen that the Mainland Administrative Procedure Law pays special attention to the protection of citizens' rights, highlighting its function of controlling and supervising the effective exercise of administrative power.
Administrative litigation in Taiwan is a two-level, two-instance system. The first instance is under the jurisdiction of the High Administrative Court. Therefore, there is no issue of hierarchical jurisdiction. In geographical jurisdiction, the principle of plaintiff versus defendant generally applies. Although it is simpler than the mainland, its protection of citizens' rights and supervision and control of administrative power are obviously not as strong as the mainland's Administrative Procedure Law. Probably because it is deeply influenced by the civil law system.
7. Differences in the administrative litigation participant systems between mainland China and Taiwan
1. Differences in plaintiff qualifications
Mainland Administrative Litigation Law imposes strict restrictions on plaintiff qualifications . The plaintiff can only be an administrative counterpart who believes that his or her legitimate personal rights and interests and property rights have been infringed by specific administrative actions of the administrative agency. In administrative litigation, the administrative subject can only be the defendant.
The qualifications of plaintiffs in administrative litigation in Taiwan vary according to the type of lawsuit. The plaintiff in an action for cancellation and an action requesting disposition can only be the administrative counterparty. The plaintiff in confirmation litigation and payment litigation can be an administrative counterpart or an administrative subject. This is very different from the mainland administrative litigation law. What is particularly unique is that in some cases, the premise for filing an administrative lawsuit is that the person's rights and interests are not infringed. For example, Article 9 of Taiwan's Administrative Litigation Law stipulates: In order to safeguard the public interest, people may file administrative lawsuits against illegal acts of administrative agencies on matters that have nothing to do with their own rights and legal interests, but only as specified by law. Article 25: A corporate legal person with a public interest purpose may initiate a lawsuit for the benefit of the public interest within the scope of the purpose specified in its articles of association and if a majority of members with the same interests authorize the execution of litigation for a certain legal relationship. (In this case in Mainland China, the corporate legal person does not have the standing to be a plaintiff).
It can be seen that the current Administrative Litigation Law of Taiwan has made a major breakthrough in the scope of protection of administrative litigation interests, gradually including some reflective interests and factual interests into the scope of litigation interests, and these interests are not limited to a specific individual, but can benefit others and even society. The common interests of the public. Taking into account that individuals who have suffered administrative infringement may not necessarily file administrative lawsuits, legislators recognize the qualifications of public interest associations as litigation subjects and allow them to file administrative lawsuits for the interests of their members or broader abstract groups in society. This is also a major breakthrough and will help better supervise the legal exercise of powers by administrative agencies.
In contrast, the conditions for eligible plaintiffs in administrative litigation in mainland China are too harsh. As Wade pointed out: Adopting restrictive regulations on the qualifications of plaintiffs is harmful to the healthy development of administrative law. The conditions for eligible plaintiffs in administrative litigation in mainland China should be lowered to ensure that people fully realize their litigation rights.
2. There are differences in the conditions for qualified defendants
In mainland China, when the entrusted agency or individual infringes upon the legitimate rights and interests of the counterparty by exercising the entrusted powers, the administrative counterparty files an administrative lawsuit During the lawsuit, the original administrative agency shall be the qualified defendant, and the entrusted organization or individual shall be the third party.
In Taiwan, when people and groups or individuals entrusted to exercise public power are involved in litigation over entrusted matters, the entrusted group or individual will be the defendant, unlike in the mainland where the entrusting agency is the defendant.
3. Differences in the qualifications of litigation agents
The Administrative Litigation Law of Taiwan stipulates that, in addition to lawyers, those who have obtained the qualifications of agents in litigation matters in accordance with the law shall be agents litigation due to their official position. Persons who have a family relationship with the parties may serve as litigation agents.
The Mainland Administrative Litigation Law stipulates that lawyers, social groups, close relatives of citizens who file lawsuits or people recommended by their units, and other citizens approved by the people's court can be entrusted as litigation agents. In comparison, the range of litigation attorneys to choose from is much larger than in Taiwan.
In addition, in mainland China, lawyers serving as litigation agents are given certain rights that are superior to other litigation agents in administrative litigation. If relevant materials on this case can be accessed in accordance with regulations, evidence can be collected from relevant organizations or citizens. Generally, parties need approval from the People's Court to exercise the above rights, and are not allowed to access content involving state secrets and personal privacy. Taiwan's Administrative Litigation Code does not grant a lawyer as a litigation agent superior rights over other litigation agents.
4. There are differences in the parties’ litigation rights
Taiwan’s Administrative Litigation Law grants more litigation rights to parties than in the mainland, and the parties’ litigation rights are not only equal, but also nearly reciprocal. For example, in some cases, the plaintiff has the right to sue and the defendant has the right to counterclaim. The plaintiff's right to withdraw the lawsuit should also be exercised in consultation with the defendant in some cases, and in some cases the parties can even reach an agreement to stop the lawsuit, etc. Mainland China’s Administrative Procedure Law has a strong power-control character. It pursues the substantial equality of the parties’ litigation rights. In order to ensure the effective exercise of the plaintiff’s litigation rights, certain restrictions are often placed on the litigation rights of administrative subjects as defendants. For example, evidence cannot be collected by oneself during litigation. The burden of proof is required. It can be seen that the legislative philosophy of the Mainland Administrative Procedure Law on this issue is still superior to the legislative philosophy of the current Administrative Procedure Law in Taiwan.
8. Differences between preliminary procedures in the Administrative Litigation Laws of Mainland China and Taiwan
The provisions on preliminary procedures for administrative litigation in the Administrative Litigation Law of the Mainland are relatively complex, and free choice is adopted The method is mainly to enforce first and then to supplement. Which administrative cases need to be reviewed beforehand are stipulated by each specific law.
The provisions on preliminary procedures for administrative litigation in Taiwan's Administrative Litigation Law are relatively simple. It divides administrative litigation into cancellation litigation, payment litigation and confirmation litigation. All lawsuits to be dismissed must first go through the appeal process, that is, the reconsideration process. Although the confirmation lawsuit does not clearly indicate that a petition needs to be pre-empted, there is actually a requirement for a pre-petition. Actions for payment are often closely related to actions for confirmation or revocation in practice. Therefore, it can be considered that the basic principle of administrative litigation in Taiwan is the principle of preemption of appeals. This is related to the fact that Taiwan’s administrative law is deeply influenced by the tradition of the administrative relief system of the mainland legal system. There are currently two groups of completely opposite opinions on the preemptive procedure: Those who agree believe that preemptive appeals are more conducive to respecting administrative power and maintaining administrative unity, and that filtering and elimination through the appeal process will greatly reduce the burden on the courts. From the perspective of the entire relief system, this setting also facilitates helping people clarify doubts, expand relief opportunities, and speed up relief procedures.
Opponents believe that listing petitions as a preliminary procedure in administrative litigation is actually different from prior coercionism and administrative choice-based arbitrariness. The appeal system is increasingly improving, making it coexist with the administrative litigation system. Which one is inappropriate?[2]? It advocates replacing the advance coercion doctrine with advance selectionism, making appeals an administrative relief system that is consistent with administrative litigation and petitions. Some scholars also suggest that for illegal sanctions in some cases, administrative litigation should be filed directly without going through the appeal or re-appeal process.
At present, appeals to self-selectionism have become mainstream in countries around the world. Even France, a typical civil law country, adopts voluntary choice in principle. In the German Administrative Proceedings Act, direct litigation is adopted for confirmation actions, general payment actions and, unless otherwise provided by law, revocation actions or obligation actions against the Federal Supreme Office or the Federal High Office. Mainland Administrative Procedure Law relatively fully respects the independent will of the parties. In comparison, the relevant provisions of Taiwan's current Administrative Procedure Law appear to be too conservative, but they are undoubtedly an improvement compared with the 1975 version of the "two-level petition and first-level litigation" system and the "pre-petition doctrine". Obviously, the administrative litigation laws of mainland China and Taiwan should further develop on this issue.
9. Differences between evidence systems
1. Differences in the burden of proof
In mainland administrative litigation, the defendant bears the burden of proof. During the litigation, the administrative subject shall prove the factual and legal reasons for its administrative actions. (The people's court may also collect evidence on its own if it deems it necessary)
Administrative litigation in Taiwan follows the principle of authority. (Note: In fact, before the promulgation of the current Administrative Procedure Law, Taiwan's Administrative Procedure Law did not provide for the burden of proof. Basically, the burden of proof can only be determined in accordance with the Civil Procedure Law. However, in judicial practice, there are also cases where the defendant bears the burden of proof. See [Taiwan] Chen Qingxiu: "Theory and Practice of Administrative Litigation", Sanmin Book Company, August 1994. , page 316.) That is, the administrative court has full responsibility for collecting and clarifying the important legal facts on which the litigation relationship is based. Article 125 of the Taiwan Administrative Litigation Law stipulates: The administrative court shall investigate factual relationships in accordance with its authority and shall not be bound by the claims of the parties. Article 133 stipulates: When the administrative court dismisses a lawsuit, it shall conduct an ex officio investigation procedure. The same applies to other lawsuits to safeguard the public interest. Article 134: Even if the matters claimed by the parties have been confessed by others, the administrative court should still investigate other necessary evidence. Even when people are unable to provide evidence for their claims and need to rely on the court's authority, they can also request the court to investigate evidence in accordance with its authority to safeguard human rights. Although the original meaning of the authority doctrine is to better assemble evidence, its effect is obviously not as effective as the mainland's provision that the defendant bears the burden of proof.
2. Differences in the responsibilities of witnesses to testify
Mainland regards testifying as the legal obligation of those with knowledge of the matter. Anyone with knowledge of the matter has the obligation to testify. The only exception is that when state secrets are involved, they are exempted. Duty to testify. Article 145 of the Taiwan Administrative Procedure Law stipulates: A witness may refuse to testify if he or she or someone with whom he or she has a close relationship may be subject to criminal prosecution or be brought into disgrace as a result of his or her statement. Even if he testifies voluntarily, he cannot be made to confess. Obviously this is related to the deep influence of Western human rights thought.
3. Differences in the scope of witness testimony
In mainland China, witness testimony is limited to facts related to the case and does not involve legal issues. It is up to the defendant to provide evidence on legal issues related to the case, and the plaintiff can also provide evidence on legal issues to prove his or her claim.
Article 162 of the Procedural Law of the Taiwan Administrative Region stipulates: When the Administrative Court deems it necessary, it may consult persons engaged in academic research on professional legal issues in litigation matters and state their legal opinions in writing or at the trial date. Opinion. It can be seen that on legal issues, Taiwan can require witnesses to testify.
In fact, mainland China has also made breakthroughs in this regard. In some administrative proceedings, judges often accept opinions from legal experts on legal issues, but this has not yet been reflected in legal provisions.
4. The parties have different time limits for collecting evidence
In administrative litigation in Taiwan, there is no time limit for the parties to collect evidence. Mainland China’s Administrative Procedure Law places strict limits on the time for defendants to collect evidence. They are required not to collect evidence from the plaintiff or witnesses on their own during the proceedings (Article 33). Its purpose is to more strictly supervise the exercise of powers by administrative agencies in accordance with the law.
5. There are different ways to deal with litigation participants who obstruct evidence collection
In mainland China, litigation participants who obstruct evidence investigation are dealt with through punishment, such as admonitions, orders to repent, Fines, detention, etc. Taiwan follows the ancient legal principle that "no one shall profit from his improper conduct" and has completely different provisions on this. Article 139 of Taiwan stipulates: A party intentionally destroys, conceals or destroys evidence because it hinders others from using it. If it is difficult to use the evidence, the administrative court may consider the circumstances and recognize the claims made by others regarding the evidence or the facts proved based on the evidence as true. This provision is obviously more scientific than the mainland's simple use of punishment.
10. Differences in the first-instance procedure
In the first-instance procedure, there are many differences between the administrative procedure laws of the mainland and Taiwan. The most obvious one is that reconciliation is possible in the normal first instance procedure in Taiwan, and mediation by the Administrative Court is not excluded. There are also summary litigation procedures in the first instance of administrative trials in Taiwan. The reason why this situation exists is that the legislative purpose of Taiwan's Administrative Procedure Law is to provide sufficient judicial relief to the parties, unlike the mainland which positions it as a control law. Therefore, as long as the purpose of providing adequate judicial relief to the parties can be achieved, summary procedures, reconciliation, mediation, etc. are not unacceptable. And because of its speed and simplicity, it has particularly obvious advantages in handling small public law disputes. But the disadvantage is that the supervision of administrative subjects is weak. Therefore, it is not appropriate to introduce these systems in our country's administrative litigation law. (Note: Since countries with civil law systems place greater emphasis on their rights protection function, reconciliation procedures are widely used in countries with civil law systems. See Chen Qingxiu: "Theory and Practice of Administrative Litigation", Sanmin Book Company, August 1994 edition, p. Page 343. ) Especially today when some administrative agencies are not very aware of the rule of law.
In addition, when making judgments, mainland China requires judges to follow the principle of "based on facts and law." In Taiwan, the principle of free trial by judges is followed. Article 189 of the Administrative Litigation Law stipulates: When making a decision, the Administrative Court shall consider the purpose of the entire debate and the results of the investigation of evidence, and determine the authenticity of the facts based on reasoning and rules of experience. The reasons for obtaining psychological evidence based on the judgment in the preceding paragraph shall be proved in the judgment. Obviously, the mainland's standard of "based on facts and law" is too idealistic, and it is difficult to fully achieve it in practice. It is not as scientific as Taiwan's "judges are free to make their own decisions".