2019.3.15
Angela Wu
The so-called “application to reopen a procedure” refers to a procedure in which the respondent or interested party of an administrative disposition may apply to the original disposition agency for cancellation, revocation or amendment if the administrative disposition which meets the statutory requirements under Article 128 of the Administrative Procedure Law after the statute of limitations for remedy expires.
This essay seeks to explore practical and feasible remedies with respect to the responses of the original disposition agency that may be sought after an application is filed to reopen the procedure in accordance with Article 128 of the Administrative Procedure Law. Possible scenarios and relevant opinions are hereby summarized below for reference.
1. If the administrative agency refuses to reconsider a matter and simply rejects an application, the rejection decision is still an administrative disposition for which the applicant may seek a remedy.
With respect to the reopening of an administrative procedure, a decision rendered by the original disposition agency may consist of two stages. The first stage deals with the determination of whether to grant the approval to the reopening application. The second stage pertains to the decision as to whether the original disposition should be cancelled, revoked, modified or upheld after the application is deemed to meet the requirements under Article 128 of the Administrative Procedure Law and the reopening of the administrative procedure is approved. With respect to whether the reopening of an administrative procedure should be approved, there used to be administrative agencies that held the following view. For a reopening application, if merely a notice concerning whether the reopening application is approved or rejected is served without reopening the review or the contents of the response only reiterate the gist of the original disposition, such notice or response is merely a statement or explanation on facts rather than an approval or rejection of an application for specific matters. Since this is not an administrative disposition, the applicant is not allowed to seek a remedy on such basis.
However, according the relevant theories and practical opinions, even though the original disposition agency fails to reconsider the contents of the original disposition and only rejects the reopening procedurally, since the decision to reject the reopening affects the applicant’s rights and interests, such procedural decision is still an administrative disposition under Article 92 of the Administrative Procedure Law. If the applicant is dissatisfied, relevant administrative remedies may still be sought.
In this regard, reference may be made to the 99-Pan-477 Decision of the Supreme Administrative Court, which states: “Although the original disposition agency only reiterated the gist of the original administrative disposition in response to the application of the party to reopen the administrative procedure, which is known as the so-called ‘repetitive disposition,’ still the disposition in essence rejected the reopening of the administrative procedure and is a procedural decision. If the party is dissatisfied with it, administrative remedy may certainly be sought. It is understood that the request at issue lodged by the Appellant was made in accordance with Article 128 of the Administrative Procedure Law to request the Appellee to reopen the administrative procedure. Although the Appellee’s letter at issue merely reiterated the determined gist of the original administrative disposition (i.e., the disposition that approved the termination of employment), still the procedural decision to reject the Appellant’s application to reopen the administrative procedure affects the Appellant’s rights and interests and is certainly an administrative disposition. Therefore, the Appellant was allowed to seek an administrative remedy.” A similar opinions can also be found in the 106-Pan-304 Decision of the Supreme Administrative Court.
2. If an administrative agency approves the reopening of an administrative procedure but still rejects an application on the ground that the original disposition is appropriate and upholds the original disposition, the applicant may also seek a remedy if dissatisfied with the decision of the administrative agency.
As previously indicated, if an administrative agency believes that a reopening application meets the legal requirements on the first stage and reconsiders this matter during the second stage, the administrative agency may render a decision to cancel, revoke or modify the original disposition or uphold the original disposition which it believes to be appropriate. Whatever the decision the administrative agency may render, such decision is an administrative disposition. If dissatisfied, the applicant may take administrative action against it. Similar opinions may be found in the 91-Su-1944 Decision or the 92-Su-2510 Decision of the Taipei High Administrative Court.[1]
3. If an administrative appeal agency deems it necessary to reopen the procedure for the original administrative disposition, it also has the right to modify the original disposition on its own to avoid the repetition of the same administrative appeal procedure by the applicant in the course of repetitive procedures.
Therefore, an applicant may seek a remedy for the reopening of an administrative procedure, regardless of whether it is substantively reviewed and rejected by the administrative agency. However, when an applicant files an administrative appeal on such basis and the administrative appeal agency believes that the application to reopen the procedure is legally valid and renders a decision on the administrative appeal to remand the original disposition, if the original disposition agency fails to follow the decision on administrative appeal and still renders an administrative disposition that rejects the application, although the applicant theoretically may still seek administrative remedy by filing administrative appeal again in response to the administrative disposition that rejects the application, still such passive refusal of the original disposition agency to deal with this matter cannot be avoided, resulting in recurrent procedures involving rejection, administrative appeal, further rejection and further administrative appeal.
Article 81, Paragraph 1 of the Administrative Appeal Law provides: “While an administrative appeal is well-grounded, the agency with jurisdiction over the administrative appeal shall set aside the administrative disposition in whole or in part may elect to decide on the modification of such administrative disposition or remand it to the original disposition agency for another disposition.” To wit, a solution to the above-mentioned issue has long been specifically stipulated in the Administrative Appeal Law. Not only can an administrative appeal agency set aside a disposition rendered by the original disposition agency in whole or in part but also has the authority to change the original disposition. It is not true that it can only remand the original disposition to the original disposition agency.
In this regard, a scholar’s opinion[2] can also be referenced. When the original disposition agency renders another disposition without complying with the previous decision on administrative appeal, the scholar also believed that “it is not appropriate for an administrative appeal agency to render a decision on a further administrative appeal to remand the original disposition again and should render a decision on its own at least to indicate in the main text the specific disposition that should be rendered. Otherwise, the functions of “integrated administration” and remedy through administrative appeal would be rendered useless. 」
In practice, even though it is rare for an administrative appeal agency to modify a disposition in its decision, still when the original disposition obviously fails to render a disposition pursuant to the gist of administrative appeal, the administrative appeal agency should preferably render a decision on its own to achieve the function of substantive administrative remedy. Otherwise, the administrative appellant will suffer from the repetitive appealing procedures, unable to bring any action with an administrative court and unable to confirm any right or interest. This may violate the gist of administrative appeal remedy.
[1] A search in the website of the Judicial Yuan did not identify any third instance decision, it can be concluded that they were final decisions.
[2] Keng Wu, Introduction on Administrative Litigation System, Page 353, 2005