Newsletter
Brief Introduction of Administrative Litigation Code Amendments in June 2014
On 30 May 2014, the Legislative Yuan passed amendments to the Administrative Litigation Code and Enforcement Act of the Administrative Litigation Code. The most important amendment sets up a special chapter for "detention claims motions procedures" in order to respond to the inquires from Judicial Yuan Interpretations No. 708 and No. 710 which gives equal protection of personal freedom to foreigners and the people of Hong Kong, Macao and the Mainland Area. In a separate amendment, the plaintiff's litigation representative in traffic adjudication cases shall not be limited to lawyers. In line with other relevant amendments of the Immigration Act, Act Governing Relations between the People of the Taiwan Area and the Mainland Area, and Laws and Regulations Regarding Hong Kong & Macao Affairs, the chapter of "detention claims event procedures" has not yet been implemented and will be implemented at a later time. The remaining amendments were published and implemented on the same day, 18 June 2014. The important parts of the amendments are outlined as follows:
1. Relaxing the qualification of legal representative on traffic adjudication cases: a lawyer is no longer required
Although it is not mandatory to have representation in administrative litigation, when used a legal representative must normally be a lawyer. Article 49 of this Act originally allowed persons with specific but fewer qualifications to act as a legal representative only on tax administration cases, patent administration cases, and for parties who are official governmental agencies. The amendments of June 2014 add traffic adjudication cases as a new category because the nature of the cases is simple, and the amount of the penalties is minimal. This amendment avoids increasing the cost of litigation, and also resolves the heavy burden of litigation by not limiting the plaintiff's options for representation in traffic adjudication cases to only lawyers. When the plaintiff is a natural person, the litigation agent can be their relative. When the plaintiff is a legal entity, or a non-corporate body, it may also be represented by a staff member whose job function is related to the case.
2. Revision and expansion of the special chapter of "detention claims event procedures"
The "detention claims event procedure" of the Administrative Litigation Code was amended in Part II, Chapter IV and expanded to a total of 8 articles. The amendments specify the relevant judicial relief procedure for foreigners and people of Mainland Area, Hong Kong and Macao.
(1) The Types of Detention Claims Events
The Administrative Litigation Code was revised in order to respond to the inquires from Judicial Yuan Interpretations No. 708 and No. 710, and are in line with other relevant amendments of the Immigration Act, Act Governing Relations between the People of the Taiwan Area and the Mainland Area, and Laws and Regulations Regarding Hong Kong & Macao Affairs. According to the current draft of the Immigration Act deliberated by the Legislative Yuan, the duration of detention can be divided into three periods which include a "temporary detention" made by NIA (no longer than 15 days), a "continued detention" ruled by the Court (no longer than 45 days) and an "extended detention" (no longer than 60 days). Therefore, to match the above-mentioned durations of detention four types of "motions" have been established including: "detention objection", "continued detention", "extended detention" and "ceasing detention."
"Continued Detention" and "Extended detention" motions are only filed by the NIA. "Detention objection" gives detainees or their relatives a chance to get an instant petition for review and rapid decisions from the court, so that they can raise any objections relating to the "temporary detention." The "ceasing detention" motion offers detainees or their relatives certain rights to petition the court to stop the detention when the reasons of detention are diminished, the necessity of detention no longer exists, or any other situation that could lead to the non-detention conclusion.
(2) Jurisdiction and Proceedings of Detention Claims Motions
Detention claims motions are under the jurisdiction of the administrative litigation chamber to the district court where the detainee is first located and apply the provisions mutatis mutandis of simple proceeding cases. However, when the accused refuses to obey the verdict of "temporary detention", the stop execution system is no longer applied, because the opportunity to an immediate petition to the court to review the decision of relief has already been given to the detainee, especially pointed out by the legislative intent. If the detainee refuses to accept the ruling by the court of administrative proceedings to the administrative litigation chamber, the detainees or their relatives can still file an interlocutory appeal to the high administrative court, but only once, unless there is a retrial (which only happens under extraordinary circumstances).
3. Revision and expansion of the types of events to apply the simple proceeding
Other administrative detention events against the NIA's ruling, (eg. if dissatisfied with the decision of the replacement of detention or confiscated deposit penalties), or a combined request for compensation, may also apply simpler proceedings because they are closely related to the detention claims event, and also because of the convince in investigating the evidence. Furthermore, an administrative injunction on lectures and remedial instruction are minor penalties and may therefore apply simple proceedings as well.