2018.10.25
Jhen-Yi Chen
The Supreme Administrative Court rendered the 107-Pan-608 Decision of October 25, 2018 (hereinafter, the “Decision”), holding that for a notarial certificate issued in mainland China and authenticated by a designated agency, the competent authority is still required to thoroughly examine the authenticity and legal appropriateness of its substantive contents by generally considering all facts and evidence.
According to the facts underlying this Decision, the Appellant is a mainland China citizen. Since she is the daughter of Individual A, a deceased retired commissioned officer, she applied to the Appellee to receive the remaining pension of Individual A. The Appellee (the Ministry of National Defense) subsequently reviewed the notarial certificate for family relationship which had been submitted by the Appellant and authenticated by the Strait Exchange Foundation (hereinafter, the “SEF”) and concluded that her name was not the same as the name of Individual A’s daughter as indicated in the records. Since the Appellant failed to rectify after being notified to supplement the materials within the required period, the original disposition was rendered to reject the Appellant’s request. Dissatisfied, the Appellant brought an administrative action pursuant to applicable procedures. After the administrative action was dismissed by the original decision, this appeal was filed.
According to the Decision, to accommodate increasing interactions between the people of Taiwan and of mainland China, the right of the deceased’s bereaved family or legal beneficiaries who live in mainland China should also be protected. However, in view of the different nature of public law payment and inheritance, priority should be given to bereaved families and legal beneficiaries in Taiwan. In addition, since technical difficulties such as the difficulties in authenticating annual compensation and monthly survivor annuities are difficult to overcome and it is necessary to avoid a massive inflow of capital from Taiwan to mainland China and to confirm the state of rights and obligations as soon as possible, Paragraph 1 of Article 26-1, which was added to the Statute for Relations between the People of the Taiwan Area and of the Mainland Area (hereinafter, the “Cross-Strait Statute”) as amended on May 14, 1997, provides: “For military servicemen, public school teachers and personnel of public enterprises and organizations (agencies) who are deceased during the period in which they receive monthly pension, if they do not have any bereaved family or legal beneficiary in Taiwan, their bereaved family or legal beneficiary may, subject to an approval of their entry to Taiwan, apply to the competent authority in writing to receive the death benefits, one-time compensation, or remaining pension or one-time survivor annuities of civil servants or military servicemen within five years after the date when the recipients of such payment are deceased, but shall not apply to receive annual compensation or monthly survivor annuities. If the application is not filed to receive such payment within the required period, the right will be lost.” 」。As for the application documents which shall be attached, Article 7 of the same statute provides: “A document prepared in mainland China and authenticated by an institution set up or designated by the Executive Yuan or by an entrusted private organization shall be presumed to be authentic.” The expression “presumed to be authentic” refers to the authenticity in form. To determine if the contents of such document are sufficient to substantiate the facts to be proven, each competent authority is still required to thoroughly review the authenticity and legal appropriateness of the substantive contents of notarial certificates issued in mainland China and authenticated by the SEF by generally considering all facts and evidence.
It was further pointed out that with respect to the Appellant’s application for Individual A’s remaining pension, the family relationship notarial document submitted by the Appellant indicated that Individual A’s only bereaved family in mainland China was a daughter, namely, the Appellant. However, after reviewing Individual A’s military service information and farmland grant record, the Appellee found that the name of the only daughter of Individual A was different from the name of the Appellant. In addition, after sending inquiries to the National Immigration Agency and the Taichung Veterans’ Service Office, the Appellee found that although there was a record showing that Individual A left Taiwan in 1990, still there was no information about his visitation to his relatives in mainland China and no record indicating application for his relatives in mainland China to visit Taiwan. A search of Individual A’s relics also failed to uncover any material such as correspondences or photographs exchanged with his relatives or friends in mainland China. This shows that none of the above information was sufficient to prove that the Appellant was the true and only inheritor of Individual A to justify the inheritor’s application for Individual A’s remaining pension. Therefore, the Appellant’s appeal was rejected since the original trial court’s decision to uphold the legality of the original disposition was not erroneous.