Newsletter
LAW OF ADMINISTRATIVE PROCEEDINGS TAKES EFFECT
The Law of Administrative Proceedings (LAP or Law) was promulgated by the President on 3 February 1999 and took effect on 1 January 2001. It comprises 175 articles, representing a histori-cal milestone in the development of administra-tive law in the ROC. The administrative acts by the government agencies must comply with the LAP. This should make administrative acts fairer, more transparent and more democratic. The principle of administration according to the law can be assured, and this will give a further level of protection to the people's rights and in-terests. The main content of the LAP is as fol-lows:
General provisions
"Administrative proceedings" means the actions and procedures by which administrative agencies make administrative dispositions, enter into ad-ministrative contracts, draw up statutory regula-tions and administrative rules, confirm adminis-trative programs, conduct administrative guid-ance, and respond to citizen's requests.
"Administrative agency" means an organization that speaks for or conducts public affairs for an organ of national or local government or other administrative entity and has an independent legal status. An individual or group mandated to exercise public authority is also regarded as an administrative agency, to the extent of the man-date.
When an administrative agency conducts an administrative act, it must follow the LAP except insofar as the law provides otherwise. The ad-ministrative acts of elected bodies, judicial agencies and control agencies at all levels are not subject to the procedural provisions of the Law. Certain specific matters, due to their special na-ture, are also not subject to the procedural pro-visions of the Law, including matters relating to foreign relations, military action or the safe-guarding of national security; acts relating to the entry and exit of foreign nationals, the determi-nation of refugee status, and change of national-ity; criminal investigation procedures; acts by detention facilities of criminal corrections agen-cies; administrative decision-making procedures relating to disputes over rights of private nature; internal procedures followed by educational es-tablishments for educational purposes; personnel administration procedures applying to civil ser-vants; and acts of the Examination Yuan relating to the setting and marking of national examina-tions.
Administrative acts are bound by general prin-ciples of law (Article 4). Principles specifically invoked by the LAP include the principles of equal treatment (Article 6), proportionality (Ar-ticle 7) and good faith (Article 8). Furthermore, administrative acts must be clear in their content (Article 5); administrative agencies must con-sider together the beneficial and detrimental ef-fects of their administrative proceedings on the parties (Article 9); and the exercise of discre-tionary powers by an administrative agency must not exceed the scope of discretion granted by law, and must be in accordance with the purpose for which such powers were granted. (Article 10).
Those with the capacity to be parties to admin-istrative proceedings include natural persons, juristic persons, groups not having the status of a juristic person but having a representative, ad-ministrative agencies, and other persons or enti-ties made the subject of rights or duties by law (Article 21).
Those with the capacity to perform administra-tive procedural acts are delimited more strictly. They are: natural persons having disposing ca-pacity according to the Civil Code; juristic per-sons; groups other than juristic persons, where the act in question is performed by their repre-sentative; administrative agencies, where the act in question is performed by their chief official, his agent or a person authorized by him; and persons and entities as provided by other laws. A foreign national not having the capacity to per-form administrative procedural acts under the laws of his own country, but having such capac-ity under ROC law, is deemed to have such ca-pacity (Article 22).
It is incumbent upon administrative agencies to investigate evidence, ex officio. During admin-istrative proceedings, parties may provide evi-dence on their own initiative, and may request administrative agencies to investigate facts and evidence.
Information held or kept by an administrative agency (including documents, pictures, records, photographs, video and audio recordings, mi-crofilms and computer data, etc.) should in principle be made public; restrictions on public access should be the exception. The Law also requires that a freedom of information law should be enacted within two years after the promulgation of the LAP (Article 45).
Parties or interested parties may apply to ad-ministrative agencies to gain access to relevant data or files, but only insofar as is necessary in order to assert or protect their legal interests (Article 46).
In the course of administrative proceedings, civil servants should not have contact outside the proceedings with the parties or with their repre-sentatives, except insofar as is necessary for the conduct of their duties. Where it is necessary for a civil servants to have such contact, they should make a written record in the file (Article 47).
Where oral hearings are held pursuant to the Law, they must follow the LAP (Article 54). Before holding an oral hearing, an administrative agency should inform the interested parties in writing of the requisite particulars of the hearing including the subject of and legal basis for the hearing, the names of the parties, the date and venue of the hearing, and the main procedures of the hearing (Article 55). If necessary, a pre-paratory hearing may also be held (Article 58). Hearings should be held in public (Article 59), chaired by an authorized representative of the administrative agency concerned, and a record of the hearing should be made (Article 64). During a hearing, parties may state their opinions and raise questions. Where a party believes that a disposition made by the chairperson in the course of a hearing is unlawful or inappropriate, he may declare his objection immediately (Article 63), to be ruled on by the chairperson.
Administrative dispositions
An administrative disposition is a unilateral ad-ministrative act in exercise of public authority, made by an administrative agency having direct legal effect on targeted persons.
General dispositions not directed towards spe-cific persons are subject to the provisions of the Law relating to administrative dispositions, as are dispositions concerning the creation, altera-tion, abandonment or general use of public property.
Except insofar as legislation imposes specific requirements as to its form, an administrative disposition may be made in writing, verbally or by other means.
Where an administrative agency has discretion-ary powers in making an administrative disposi-tion, it may attach additional provisions (in-cluding time limits, conditions, obligations, re-serving the right to cancel the disposition, and reserving the right to subsequently add or change obligations). Where the agency has no such discretionary powers, the content of any addi-tional provisions should be limited to that ex-plicitly provided for by law, or to such statutory requirements relating to the disposition as are necessary to ensure its execution.
To prevent abuse of power by administrative agencies, the Law specifically bans improper association. In other words, attached provisions must not run counter to the purpose of the ad-ministrative disposition, and must have a proper and reasonable connection with that purpose (Article 94).
In principle, before an administrative agency makes an administrative disposition affecting one's rights, it must give that person an oppor-tunity to be heard. After holding an oral hearing, it must take into consideration the entire outcome of the hearing except where the law requires re-liance solely on the record of the hearing (Article 108). Because a disposition of this type is the result of a rigorous procedure, a party who does not accept the disposition and wishes to seek an administrative remedy need not go through an administrative appeal and its preliminary pro-cedures (Article 109), but can proceed directly to filing a suit for revocation in the Administrative Court.
Under any of the following circumstances, an administrative agency need not give an oppor-tunity to state opinions: Where a large number of dispositions of the same type are being made; where the situation is urgent, and giving such opportunity would clearly be against the public interest; where a statutory time limit applies, and giving such opportunity would clearly make it impossible to respect that time limit; in the case of any measures undertaken when executing compulsory administrative enforcement; where the facts on which the administrative disposition is based are objectively sufficiently clear to be confirmed; where the negative impacts on the targeted person's rights is obviously slight, such that it is unnecessary to first hear statements of that person; where, according to law, procedures prior to filing an administrative appeal are available such as lodging an objection or peti-tioning the administrative agency to examine, review or reexamine, etc.; and in the case of a disposition made according to law to prevent a person from concealing or transferring assets or fleeing abroad (Article 103).
An administrative disposition is invalid if it has a material and obvious defect. Examples are: failure to identify the agency making the dispo-sition; failure to issue a certificate where a dis-position must be made by the issuing of a cer-tificate; where the content cannot be achieved with regard to any person; where an action re-quired or permitted would constitute a criminal offence; where the content is contrary to public order or good morals; where relevant powers have not been granted to the agency concerned, etc. (Article 111). An invalid disposition does not have any legal effects.
A valid disposition has legal effects until it is revoked, canceled, or becomes valid for other reasons
The time at which an administrative disposition becomes effective is important as the starting point for calculating time limits for seeking ad-ministrative remedies. For instance, an adminis-trative appeal must be filed within 30 days after the day on which an administrative disposition was served or the period of public announcement ended, or, where filed by an interested party, after the time when the party became aware of the disposition, but not more than three years after the disposition was served or the period of public announcement ended (Law of Administrative Appeal, Article 14).
Unless otherwise stated in the disposition, gen-erally speaking, a written disposition becomes effective from the time when it is served on the targeted person and on known interested parties, and a disposition not in writing becomes effective from the time when it is notified or otherwise made known. A general disposition becomes effective from the date on which it is publicly announced or from the last date on which it is published in a government gazette or newspaper.
Where an administrative disposition is legally defective but short of being revocable, the ad-ministrative agency must rectify it or make a substitution for it. Rectification is permitted where the administrative disposition does not comply with the law in terms of procedures, but without affecting the substantive content. Ex-amples are where a disposition may only be made on application, and the party concerned subse-quently makes such application, or where an opportunity should be given to parties to express their opinions, and such an opportunity is sub-sequently given (Article 114). Where the sub-stantive content of a disposition contains errors or is not compliant with the law, the administrative agency may still substitute for it another admin-istrative disposition substantively and proce-durally identical to it in all major aspects. However, no such substitution is permitted where it would harm the interests of a party to the dis-position who has relied on the original disposi-tion, where the substituted disposition is not consistent with the purpose of the original dis-position, or where the substituted disposition is less advantageous to a party.
Once the statutory period for seeking remedies has expired, a party to an administrative disposi-tion has no further opportunity to seek the revo-cation of an unlawful disposition. But the ad-ministrative agency which made the original disposition, or its superior agency, may revoke the disposition in whole or in part ex officio within two years after becoming aware of grounds for revocation, except where such revo-cation would be of major detriment to the public interest; or where the harm to the interests of a person benefiting from and relying on the origi-nal disposition is obviously greater than the pub-lic interest to be upheld by its revocation, and none of the statutory grounds for deeming such a beneficiary unworthy of protection applies (Ar-ticle 117).
Following the revocation of an unlawful dispo-sition, if a beneficiary of the revoked disposition whose interest is worthy of protection suffers loss because of his reliance on the disposition, the revoking agency should award reasonable compensation. The right to seek compensation lapses if not exercised within two years.
A lawful disposition should, as such, be effective. However, under certain circumstances, because a party has not fulfilled certain obligations, or where the existence of the disposition is of major detriment to the public interest, it may be can-celed in whole or in part by the administrative agency which made the original disposition (Ar-ticle 123). If the disposition is canceled for rea-sons of public interest, compensation must be given to beneficiaries whose interests depend on the disposition. A beneficiary who is dissatisfied with such compensation arrangements may also file a suit for fulfillment of obligations (Article 126).
Unless otherwise provided by law, rights of claims arising from public laws are extinguished by prescription if not exercised within five years (Article 131).
Administrative contracts
The Law authorizes the execution of adminis-trative contracts to create, alter or terminate public-law relationships. (Article 135).
The LAP recognizes two types of such contract: settlement agreements, and bilateral contracts. Where the facts or legal relationships relied upon by an administrative agency in making an ad-ministrative disposition cannot be confirmed by ex-officio investigation, in order to effectively achieve its administrative objectives and resolve disputes, an agency may conclude a settlement agreement with the counterpart instead of ren-dering an administrative disposition (Article 136).
An administrative agency may also enter into contracts imposing mutual obligations. But to prevent injustice arising out of the administrative agency's use of its power and status, the Law provides that such a contract must stipulate the specific purpose of obligations of the private party; that such fulfillment of obligations must be conducive to the administrative agency's performance of its duties; and that the obliga-tions of the private party must be commensurate with those to be fulfilled by the administrative agency, and must stand in a proper and reason-able relationship with them (Article 137 Para-graph 1).
Where an administrative agency exercises public authority in a way directly and necessarily re-lated with the performance of the contract en-tered into by another administrative agency, such that the private party to the contract has to bear increased cost or other unforeseeable loss in the performance of his contractual obligations, the private party may seek compensation from the contracting agency (Article 145).
After entering into an administrative contract, an administrative agency may, on grounds of public interest, adjust the content of the contract or terminate it. But it must compensate the other party for loss suffered as a result.
If there is a change in circumstances after an administrative contract is entered into, either party may request to adjust the content of the contract appropriately. If such adjustment can-not be made, the requesting party may terminate the contract. But in order to maintain the public interest, the administrative agency may, after compensating the other party's loss, order him to continue with the performance of his contractual obligations.
Where an administrative contract stipulates the voluntary acceptance of enforcement, and an obligor does not perform his obligations, the ob-ligee may assert the contract as grounds for compulsory enforcement.
Since many concepts associated with adminis-trative contracts are derived from the Civil Code, the provisions of the Civil Code may be applied, mutatis mutandis, to matters not covered by the LAP (Article 149).
Statutory regulations and administrative rules
Statutory regulations are made by an adminis-trative agency on the basis of powers granted to it by statute, and having general legal effects with regard to matters regulated. Because adminis-trative agencies are not legislative bodies, statu-tory regulations must not exceed the extent of the powers granted to them by law (Article 150). When drafting a statutory regulation, an admin-istrative agency may hold oral hearings, ex offi-cio (Article 155).
Administrative rules are legal guidelines effec-tive internally to an administrative agency for the purpose of regulating the internal operations of the agency, such as those governing the internal organization of the agency, the allocation of du-ties, methods of dealing with affairs, or person-nel management; or explanatory rules and dis-cretionary guidelines drawn up to assist subor-dinate agencies in consistently interpreting laws and regulations, determining facts and exercising discretionary powers (Article 159).
Administrative programs
Administrative program means a set of plans devised by an administrative agency to achieve a specific goal or realize a certain project (Article 163). Therefore, the scope of administrative programs is extremely broad. Programs relating to the specific use of land within a certain area or to the construction of major public infrastructure facilities affect many people with different in-terests and involve the powers of many different administrative agencies. Therefore, in the in-terests of achieving the best possible result, be-fore such a program is finalized, procedures must be followed to make the decision-making proc-ess transparent.
Administrative guidance
Administrative guidance is a tool by which an administrative agency, within the scope of its powers, in order to realize a certain administra-tive objective, acts by guidance, assistance, ad-vice, suggestion or other methods not having compulsory legal force, to encourage specific persons to perform or not to perform certain acts (Article 165). An administrative agency must not abuse its powers of administrative guidance. If a person toward whom administrative guid-ance is directed clearly refuses such guidance, the administrative agency must cease immedi-ately, and must not use this to act to the disad-vantage of the party concerned (Article 166).
Citizens' requests
Citizens may make requests to administrative agencies, in writing or verbally. The LAP lays down detailed provisions concerning the meth-ods of making such requests, principles for re-sponding to them and the duty of notification (Articles 168 to 172). However, in the interests of administrative efficiency, if a citizen's request repeats one made previously by himself or an-other person, the administrative agency need not respond (Article 173).
Entry into force
The Law took effect on 1 January 2001. How-ever, in view of the fact that administrative agencies have not yet finished amending or drafting many statutory regulations pursuant to the Law, to avoid creating greater controversy, the Legislative Yuan is now considering adding a new Article 174-1 introducing transitional pro-visions to enable such regulations to remain ef-fective for up to one year following the Law's entry into force.