February 2018
If any illegal use of a building has been detected by the police and controlled under a special project, the owner shall immediately choose an appropriate tenant; and if the tenant is still potentially involved in illegal business, it may be deemed that the tenant's intention to engage in illegal business via the lease is foreseeable (Taiwan)
2017.10.31
Yi-Shan Cheng
The Supreme Administrative Court rendered the 106-Pan-596 Decision of October 31, 2017 (hereinafter, the "Decision"), holding that if any illegal use of a building has been detected by the police and controlled under a special project, the owner shall immediately choose an appropriate tenant; and if the tenant is still potentially involved in illegal business, it may be deemed that the tenant's intention to engage in illegal business via the lease is foreseeable.
According to the facts underlying this Decision, the building at issue which was owned by the Plaintiff was found by the Department of Urban Development of Taipei City Government, as a result of its examination, to have been illegally used as premises for sex trade. After rectification was not made within a required period, the original disposition, which imposed a NT$300,000 fine upon the Plaintiff, was rendered along with suspension of water and electricity supply to the building at issue. Dissatisfied, the Plaintiff brought an administrative action according to relevant procedures. After the portion of the disposition concerning the fine was set aside by the original trial court, the Defendant appealed with respect to the unfavorable portion of the original decision.
According to this Decision, the building at issue which was owned by the Plaintiff had been found by the police to have been illegally used as premises for sex trade. Therefore, the building at issue was controlled under a special project. Hence, the Plaintiff should have cautiously used such building, and even if the building was leased, an appropriate tenant should have been selected to avoid the past mistake. However, the Plaintiff still leased the building at issue to a skincare salon without a store sign which might potentially engage in pornographic business like the previous tenant. Therefore, the tenant's potential engagement in sex trade should be foreseeable. Therefore, the finding of the original trial court in its decision that the fact that the violation was found for the second time was not sufficient to conclude that the Plaintiff had deliberately allowed the tenant to engage in illegal use is obviously inconsistent with general social concepts and experiential rules. Therefore, it was further concluded that the Plaintiff should have foreseen the outcome of the legal violation, and the occurrence was not unexpected by the Plaintiff. Regardless ofdolus indirectus or dolus eventualis, the original decision violated the law for insufficiency of grounds for its failure to investigate the Plaintiff's culpability for deliberately putting its building in a state of illegal use. Therefore, the original decision was reversed and remanded.
Yi-Shan Cheng
The Supreme Administrative Court rendered the 106-Pan-596 Decision of October 31, 2017 (hereinafter, the "Decision"), holding that if any illegal use of a building has been detected by the police and controlled under a special project, the owner shall immediately choose an appropriate tenant; and if the tenant is still potentially involved in illegal business, it may be deemed that the tenant's intention to engage in illegal business via the lease is foreseeable.
According to the facts underlying this Decision, the building at issue which was owned by the Plaintiff was found by the Department of Urban Development of Taipei City Government, as a result of its examination, to have been illegally used as premises for sex trade. After rectification was not made within a required period, the original disposition, which imposed a NT$300,000 fine upon the Plaintiff, was rendered along with suspension of water and electricity supply to the building at issue. Dissatisfied, the Plaintiff brought an administrative action according to relevant procedures. After the portion of the disposition concerning the fine was set aside by the original trial court, the Defendant appealed with respect to the unfavorable portion of the original decision.
According to this Decision, the building at issue which was owned by the Plaintiff had been found by the police to have been illegally used as premises for sex trade. Therefore, the building at issue was controlled under a special project. Hence, the Plaintiff should have cautiously used such building, and even if the building was leased, an appropriate tenant should have been selected to avoid the past mistake. However, the Plaintiff still leased the building at issue to a skincare salon without a store sign which might potentially engage in pornographic business like the previous tenant. Therefore, the tenant's potential engagement in sex trade should be foreseeable. Therefore, the finding of the original trial court in its decision that the fact that the violation was found for the second time was not sufficient to conclude that the Plaintiff had deliberately allowed the tenant to engage in illegal use is obviously inconsistent with general social concepts and experiential rules. Therefore, it was further concluded that the Plaintiff should have foreseen the outcome of the legal violation, and the occurrence was not unexpected by the Plaintiff. Regardless ofdolus indirectus or dolus eventualis, the original decision violated the law for insufficiency of grounds for its failure to investigate the Plaintiff's culpability for deliberately putting its building in a state of illegal use. Therefore, the original decision was reversed and remanded.
