The Supreme Court rendered the 106-Pan-283 Decision of June 8, 2017 (hereinafter, the “Decision”), holding that since the refusal of the competent authority to approve a developer’s application to be removed from the watch list for damage to its neighbor is a refusal to conduct factual behavior rather than an administrative disposition, a dissatisfied citizen should seek remedies by filing general payment litigation.
According to the facts underlying this Decision, A was the proprietor in a construction permit issued by the Public Works Department of New Taipei City Government. Since an incident where property of neighbors was damaged in the course of construction took place, and subsequently an examination report was prepared pursuant to the New Taipei City’s Procedure for Handling Incidents Involving Damage to Neighbors’ Property with the compensation deposited at the court, A applied to the Public Works Department of New Taipei City Government to be taken off the watch list for damage to neighbors’ property, only to be requested that a supplemental examination report should be submitted. Dissatisfied, A brought administrative action pursuant to applicable procedures.
According to the Decision, when an incident involving damage to neighbors takes place, the construction project will be placed in the watch list first, and whether the project is taken off the watch list is one of the matters that should be reviewed in considering the issuance of usage license. However, such watch list-based administrative behavior is not a legal requirement and is nothing but factual recording of the fact that damage to neighbors was incurred in the operating register (control card) of the administrative agency and is recording in the internal operating register of the administrative agency. Since such recording does not have external legal effect directly, it is not an administrative disposition. Therefore, application to remove the applicant from the watch list for its damage to neighbors is a request for factual behavior of the administrative agency, and the refusal to engage in such behavior is not an administrative disposition, either. If the citizen is dissatisfied, remedies should be sought by filing general payment litigation in accordance with Article 8-1 of the Administrative Litigation Law.
It was further held in the Decision that if the court believes the type of litigation filed by the Plaintiff is not sufficient to achieve the most effective protection of rights, the court should explore the true intent of the Plaintiff in filing the litigation by way of elucidation pursuant to Article 125 of the Administrative Litigation Law and instruct that the litigation should be changed into another type of litigation. Since the original decision dismissed the administrative litigation on the ground that it did not meet the requirement for litigation that imposes obligations in violation of Article 125, Paragraph 2 of the Administrative Litigation Law, the original decision was reversed and remanded.