August 2017
Contractors handling earthwork excavation, transportation and disposal are still required to obtain a construction business license pursuant to the Construction Industry Law(Taiwan)
Luke Hung
The Supreme Administrative Court rendered the 104-Pan-718 Administrative Decision of November 27, 2015 (hereinafter, the "Decision"), holding that a contractor handling earthwork excavation, transportation and disposal is still required to obtain a construction business license pursuant to the Construction Industry Law.
According to the facts underlying this Decision, Hao Feng Co., which was not a party to this litigation and had contracted the project at issue, subcontracted the excavation portion of the earthwork to the Appellant, who was not a qualified operator in the construction business. The Appellee believed as a result of its review of the construction contract in this matter that the "earthwork excavation, transportation and disposal project" contracted to the Appellant was a professional project for a registered professional operator in the construction business and fell within the scope of "earth retention and support and earthwork projects" under Article 8, Subpararaph 2 of the Construction Industry Law. Since the failure of the Appellant to obtain a construction business license constituted violation of Article 4, Paragraph 1 of the Construction Industry Law, the Appellee sanctioned the Appellant by ordering the suspension of the Appellant's construction business and imposing a fine of NT$1 million. Dissatisfied, the Appellant brought administrative action, which was rejected in the decision of the original trial court, and subsequently filed this appeal.
According to the Decision, the legislative reason of Article 8, Subparagraph 2 of the Construction Industry Law concerning the "earth retention and support and earthwork projects" is that "if business operation involves construction and civil engineering to an extent that directly impacts the structural safety and construction quality of a building, it should be specifically stipulated as a professional project...(2) earth retention and support and earthwork project: for the construction of the foundation of a structure, all kinds of support and protective projects such as retaining walls as well as earthwork excavation, land preparation and disposal of spent clay undertaken to prevent collapse of the construction site." This is sufficient to prove that the "earthwork excavation, land preparation and spent clay disposal," which directly affect the structural safety of buildings, should still be deemed professional construction projects requiring the services of a registered professional construction operator, even if such projects are handled separately (without concurrent operation of an earth retention and support project). Otherwise, if the requirement is that only when the "earth retention and support" and "earthwork" projects are both handled are they deemed professional construction projects requiring the services of a registered professional construction operator, how can structural safety and quality of buildings be ensured? It was further held in the Decision that even if the Appellant only handled the earthwork excavation portion, the requirement would still apply. Therefore, the appeal was rejected.
The Supreme Administrative Court rendered the 104-Pan-718 Administrative Decision of November 27, 2015 (hereinafter, the "Decision"), holding that a contractor handling earthwork excavation, transportation and disposal is still required to obtain a construction business license pursuant to the Construction Industry Law.
According to the facts underlying this Decision, Hao Feng Co., which was not a party to this litigation and had contracted the project at issue, subcontracted the excavation portion of the earthwork to the Appellant, who was not a qualified operator in the construction business. The Appellee believed as a result of its review of the construction contract in this matter that the "earthwork excavation, transportation and disposal project" contracted to the Appellant was a professional project for a registered professional operator in the construction business and fell within the scope of "earth retention and support and earthwork projects" under Article 8, Subpararaph 2 of the Construction Industry Law. Since the failure of the Appellant to obtain a construction business license constituted violation of Article 4, Paragraph 1 of the Construction Industry Law, the Appellee sanctioned the Appellant by ordering the suspension of the Appellant's construction business and imposing a fine of NT$1 million. Dissatisfied, the Appellant brought administrative action, which was rejected in the decision of the original trial court, and subsequently filed this appeal.
According to the Decision, the legislative reason of Article 8, Subparagraph 2 of the Construction Industry Law concerning the "earth retention and support and earthwork projects" is that "if business operation involves construction and civil engineering to an extent that directly impacts the structural safety and construction quality of a building, it should be specifically stipulated as a professional project...(2) earth retention and support and earthwork project: for the construction of the foundation of a structure, all kinds of support and protective projects such as retaining walls as well as earthwork excavation, land preparation and disposal of spent clay undertaken to prevent collapse of the construction site." This is sufficient to prove that the "earthwork excavation, land preparation and spent clay disposal," which directly affect the structural safety of buildings, should still be deemed professional construction projects requiring the services of a registered professional construction operator, even if such projects are handled separately (without concurrent operation of an earth retention and support project). Otherwise, if the requirement is that only when the "earth retention and support" and "earthwork" projects are both handled are they deemed professional construction projects requiring the services of a registered professional construction operator, how can structural safety and quality of buildings be ensured? It was further held in the Decision that even if the Appellant only handled the earthwork excavation portion, the requirement would still apply. Therefore, the appeal was rejected.
