Emily Chueh
The Taipei High Administrative Court rendered the 107-Su-709 Decision of August 15, 2019 (hereinafter, the “Decision”), holding that in an administrative action brought to cancel a discretionary disposition, it is necessary to consider the basic facts relied on and grounds for the administrative agency’s disposition to determine if there is any abuse of power.
According to the facts underlying this decision, the Plaintiff engaged in the manufacture of corrugated medium paper in the paper industry. The Defendant tested samples taken from a major effluent outlet of the Plaintiff, and the results of the examination showed that the effluent did not meet the effluent standard. Later, samples taken by the Plaintiff were tested, but the results still fail to meet the effluent standard. Therefore, the Defendant issued a letter to request a statement from the Plaintiff. After submitting the statement, the Plaintiff still could not produce any evidence to refute the facts of the violation. Therefore, the Defendant held that the Plaintiff’s effluents did not meet the effluent standard and enjoyed benefits for the violation of the Water Pollution Control Law before it was amended on February 4, 2015. Thus, the Defendant calculated the amount of the fine in accordance with Article 40, Paragraph 1 of the same law and Article 18, Paragraph 1 of the Administrative Penalty Law for the violation of Article 7, Paragraph 1 of the Water Pollution Control Law, considered the number of hours of environmental training and the standard for the deciding the amount of a fine under the Environmental Education Law pursuant to Article 23, Subparagraph 2 of the Environmental Education Law before it was amended on November 29, 2017, and imposed a fine and two-hour environmental training in accordance with Article 40, Paragraph 1 of the Water Pollution Control Law, Article 18, Paragraph 1 of the Administrative Penalty Law and Article 2, Subparagraph 3 of the Guidelines for Deciding the Amount of Fine under the Water Pollution Control Law. Dissatisfied, the Plaintiff filed an administrative appeal, which was still rejected. Therefore, the Plaintiff brought an administrative action.
According to the Decision, Article 4, Paragraph 2 of the Administrative Litigation Law provides that “an administrative disposition shall be deemed illegal if it exceeds its authority or abuses power,” and Article 201 provides that “with respect to the administrative disposition rendered by an administrative agency at its discretion, its action or inaction shall not exceed its authority or abuse its power, and such disposition may be set aside by an administrative court.” Pursuant to the gist of the provisions, in an administrative action to cancel a discretionary disposition, the administrative court can only consider if the decision of an administrative agency is lawful based on the principle of separation of powers.
It was further pointed out in this Decision that in determining if the exercise of the discretionary power is flawed, the administrative court shall examine if there is any abuse of power because the rendition of the administrative disposition exceeds the statutory limit of discretion or because the discretionary power is wielded in a manner not consistent with the purpose of the mandate. To wit, when hearing an administrative action to cancel a discretionary disposition, the administrative court does not exercise the discretion in place of the administrative agency in determining if the rendition of the administration disposition abuses power. But rather, the administrative court should make a determination based on the basic facts relied on by administrative agency for its discretion before determining if the rendition of the administrative disposition by the administrative agency abuses power based on the reasons for the administrative agency’s discretion. Therefore, in an administrative action to cancel a discretionary disposition, it is necessary to determine the legality of the administrative disposition based on the basic facts and reasons for the discretion of the administrative agency. The Plaintiff’s assertion that the Defendant elected to infer, without assuming the burden of proof, that the Plaintiff had generated sludge without operating a dehydrator and failed to operate effluent treatment facilities normally based on the test of the samples taken and supplemented by the Plaintiff’s internal data was acceptable. As to when the Plaintiff was subject to any water pollution incident again after passing the audit and inspection and how much was the illegal gain, the Defendant did not come up with any concrete determination or explanation. Therefore, the original disposition was erroneous and could not be upheld. The decision on the administrative appeal was also inappropriate for failing to correct the disposition. Therefore, the Plaintiff’s action to cancel the disposition was well-grounded and should prevail.