February 2018
If an advertisement is set up without prior application to the competent authority for approval, the building owner who has factual management power over pieces of work such as advertising billboards shall assume the obligation to eliminate them (Taiwan)
2017.12.27
Luke Hung
The Supreme Administrative Court rendered the 106-Pan-685 Decision of December 7, 2017 (hereinafter, the "Decision"), holding that if an advertisement is set up without prior application to the competent authority for approval, the building owner who has factual management power over pieces of work such as advertising billboards shall assume the obligation to eliminate them.
According to the facts underlying this Decision, the Department of Urban Development of Taipei City Government held that the Hua Mei Hotel Co., Ltd. had set up a side-hanging type advertising billboard "Hua Mei Hotel" (hereinafter, the "Advertisement at Issue") without authorization. Since the Hua Mei Hotel Co., Ltd. failed to rectified after being notified to do so multiple times, a fine of NT$40,000 was imposed in accordance with Article 95-3 of the Building Law for violation of Article 97-3, Paragraph 2 of the same law, and the Hua Mei Hotel Co., Ltd. was required to demolish the Advertisement at Issue on its own within 10 days upon receipt of the notice (hereinafter, the "Original Disposition"). Dissatisfied, the Hua Mei Hotel Co., Ltd. brought an administrative action pursuant to required procedures. As a result, the original trial court rendered a decision (hereinafter, the "Original Decision") which set aside the decision on administrative appeal and the Original Disposition. Dissatisfied, the Department of Urban Development of Taipei City Government appealed.
According to the Decision, the types of obligation imposed under Article 95-3 of the Building Law are centered on buildings and are status liabilities by nature. To wit, a building owner or land owner assumes administrative obligations for advertising billboards or erection of advertisements in the form of status liability. The so-called "users" refer to those who have no ownership but may use pieces of work such as advertising billboards due to their factual management power over them. This also falls within the scope of status liability. Therefore, they are obligated to eliminate pieces of work such as advertising billboards for their violation of order and safety under the Building Law. If the obligor with status liability meets the penal criteria for willfulness or negligence under the Administrative Penalty Law, the competent authority may penalize on such basis to sanction an act that violates administrative law obligations.
It was further pointed out in this Decision that since the application for the advertising billboard set up by the Hua Mei Hotel Co., Ltd had not been filed with the competent authority for approval and the Hua Mei Hotel Co., Ltd was an actual user with factual management power of the Advertisement at Issue, the Hua Mei Hotel Co., Ltd was a control target under Article 95-3 of the Building Law and was an obligor with status liability. Therefore, it was certainly responsible for eliminating the condition that the order and safety under the Building Law were violated by the Advertisement at Issue. Therefore, the Supreme Administrative Court held that the application of Article 97-3, Paragraph 2 and Article 95-3 of the Building Law in the Original Decision was erroneous, the Original Decision was reversed based on the facts ascertained by the original trial court with the Hua Mei Hotel Co., Ltd.'s first instance complaint rejected.
Luke Hung
The Supreme Administrative Court rendered the 106-Pan-685 Decision of December 7, 2017 (hereinafter, the "Decision"), holding that if an advertisement is set up without prior application to the competent authority for approval, the building owner who has factual management power over pieces of work such as advertising billboards shall assume the obligation to eliminate them.
According to the facts underlying this Decision, the Department of Urban Development of Taipei City Government held that the Hua Mei Hotel Co., Ltd. had set up a side-hanging type advertising billboard "Hua Mei Hotel" (hereinafter, the "Advertisement at Issue") without authorization. Since the Hua Mei Hotel Co., Ltd. failed to rectified after being notified to do so multiple times, a fine of NT$40,000 was imposed in accordance with Article 95-3 of the Building Law for violation of Article 97-3, Paragraph 2 of the same law, and the Hua Mei Hotel Co., Ltd. was required to demolish the Advertisement at Issue on its own within 10 days upon receipt of the notice (hereinafter, the "Original Disposition"). Dissatisfied, the Hua Mei Hotel Co., Ltd. brought an administrative action pursuant to required procedures. As a result, the original trial court rendered a decision (hereinafter, the "Original Decision") which set aside the decision on administrative appeal and the Original Disposition. Dissatisfied, the Department of Urban Development of Taipei City Government appealed.
According to the Decision, the types of obligation imposed under Article 95-3 of the Building Law are centered on buildings and are status liabilities by nature. To wit, a building owner or land owner assumes administrative obligations for advertising billboards or erection of advertisements in the form of status liability. The so-called "users" refer to those who have no ownership but may use pieces of work such as advertising billboards due to their factual management power over them. This also falls within the scope of status liability. Therefore, they are obligated to eliminate pieces of work such as advertising billboards for their violation of order and safety under the Building Law. If the obligor with status liability meets the penal criteria for willfulness or negligence under the Administrative Penalty Law, the competent authority may penalize on such basis to sanction an act that violates administrative law obligations.
It was further pointed out in this Decision that since the application for the advertising billboard set up by the Hua Mei Hotel Co., Ltd had not been filed with the competent authority for approval and the Hua Mei Hotel Co., Ltd was an actual user with factual management power of the Advertisement at Issue, the Hua Mei Hotel Co., Ltd was a control target under Article 95-3 of the Building Law and was an obligor with status liability. Therefore, it was certainly responsible for eliminating the condition that the order and safety under the Building Law were violated by the Advertisement at Issue. Therefore, the Supreme Administrative Court held that the application of Article 97-3, Paragraph 2 and Article 95-3 of the Building Law in the Original Decision was erroneous, the Original Decision was reversed based on the facts ascertained by the original trial court with the Hua Mei Hotel Co., Ltd.'s first instance complaint rejected.
