| 摘要註: |
公法上金錢給付義務之執行,於行政執行法在民國90年1月1日修正施行後,即改由法務部行政執行署所屬各分署依據行政執行法與強制執行法之規定專責為執行。然此給付義務之實現與否,實攸關國家之財政、社會、公共設施及公共衛生福利等措施建置之完善,影響公益較民事上強制執行極為重大。惟行政執行各分署於發動強制執行程序前,應先行審查執行名義的合法性。然執行機關對執行名義僅得為形式審查,無法為實質審查。但筆者實務工作上所遇執行名義最大宗即為「行政處分」,故本文在第二章中試著歸納文獻上對行政處分之效力之理解,第三章針對行政執行機關形式審查之論據等作說明,接著再從執行效力及救濟為討論。最終,本文認為,行政執行機關對執行名義若為實質審查,將使得執行實務窒礙難行,且國家債權倘無法儘速獲償將對公益有極大損傷。況義務人本在原行政處分即獲有行政救濟之權利得以行使,不應在執行階段又偏重予義務人有雙重行政救濟之機會。故無法得出執行機關應對執行名義改以實質審查之確定結論。 Exection of the compulsory monetary payment in public law has been changed only by the branches of the Administrative Enforcement Agency were responsible for execution, that according to the Administrative Execution Act and Compulsory Enforcement Act to take the charge of the affairs rather than being restricted, after the Administrative Execution Act came into effect from January 1, 2001. The duty in the monetary payment of public law whether it does be realized, that will be consummated a matter of national finance, social, public facilities, public health and welfare or not. Administrative enforcement is extremely higher of public welfare than civil enforcement. Just before the branches of the Administrative Enforcement Agency launched procedure for execution, they should first review the legality of a ground for execution. However, the administrative executive organ of the legality of a ground for execution only can be in the form of review to be substantially unable to review. But I have found themselves in the practical work most kinds of a ground for execution is the administrative sanction. In chapter two, I attempt introduce all the validities of the administrative sanction that have been depicted in text books and articles. In the third chapter, I tried to explain the administrative executive organ only can be in the form of review is based on what, then the discussion on the effect of administrative execution and the administrative remedy. Finally, this paper argues that, if the administrative executive organ for the substantive review of a ground for execution, that make it practically difficult to perform. And if the national debt is no way to quickly obtain reimbursement will greatly damage the public interest. Not to mention for the obligor, when he received the original administrative sanction is obtained rights to exercise administrative remedy. Therefore, we should not pay attention to revitalize the for the obligor to enjoy the 2nd of administrative remedy opportunities during the administrative execution phase. So finally no way to get the definitive conclusion that the administrative executive organ should be changed into a substantive review of a ground for execution. |