The Supreme Administrative Court rendered the 109-Pan-292 Decision of May 28, 2020 (hereinafter, the “Decision”), holding that if an act breaches both criminal law and administrative law obligations, whether the administrative agency may impose an administrative penalty similar to the criminal penalty depends on the final outcome of the criminal prosecution or trial conclusion of the act.
According to the facts underlying this Decision, the factory of Appellee or Company A, a food manufacturer authorized to be established, was audited by the Appellant (the Department of Health of Kaohsiung City Government) and found to have allegedly used expired raw materials and additives to manufacture the products at issue for sale in the market. The Appellant exposed this and provided the Appellee with an opportunity to state its opinion. Although the Appellee submitted its written opinions several times, the Appellant found, after its examination and consideration of facts, evidence and stated opinions, that the fact of the Appellee’s violation of Article 15, Paragraph 1, Subparagraph 8 of the Law Governing Food Safety and Sanitation Law (hereinafter, the “Food Safety Law”) was clear, imposed a fine on the Appellee in accordance with Article 44, Paragraph 1, Subparagraph 2 and Article 52, Paragraph 1, Subparagraph 1 and Paragraph 2 of the same law and Article 4, Paragraph 1 of the Penalty Standards of Fine under Paragraph 1, Article 44 of the Food Law, and ordered the recall of the products at issue by a stated deadline (hereinafter, the “Original Disposition”). Dissatisfied with the fine imposed in the Original Disposition and the enforcement of the fine by the Kaohsiung Branch of the Administrative Enforcement Agency of the Ministry of Justice, the Appellee brought an administrative action pursuant to applicable procedures to request the reversal of the portion about the fine in the decision on administrative appeal and the Original Disposition. The original trial court rendered a decision (hereinafter, the “Original Decision”) to set aside the portion about the fine both in the decision on administrative appeal and the Original Decision, and the Appellant was required to pay the Appellee the portion which had been enforced with the remainder of the Appellee’s claims dismissed. The Appellant appealed due to its dissatisfaction with unfavorable portions in the Original Decision.
According to this Decision, Article 32 of the Administrative Penalty Law provides that if one and single act constitutes a criminal offense or offenses as well as breach of duty under administrative law at the same time, the part of the case involving criminal liabilities shall be referred to the competent judicial authority. For such referred cases, if the judicial authority renders a final non-prosecutorial or deferred prosecution disposition or makes a final ruling of acquittal, dismissal, inadmissibility, non-trial, order not to put under protection, exemption from punishment, probation, or revocation of probation or renders a final guilty decision after setting aside a deferred prosecution disposition, the administrative agencies that originally referred such cases shall be notified. Therefore, if an act breaches both criminal law and administrative law obligations, whether the administrative agency may impose an administrative penalty similar to the criminal penalty depends on the final outcome of the criminal prosecution or trial conclusion of the act, and the administrative agency shall not elect to impose a penalty before the criminal procedure is concluded and becomes final.
The Decision further states that since the Original Decision held that the Appellant’s breach of his public law obligation under Article 15, Paragraph 1, Subparagraph 8 of the Food Safety Law is included in the criminal fact section set forth in the indictment, the facts of the Appellee’s violation set forth in the Original Disposition have concurrently constituted part of the Appellee’s criminal acts alleged in the indictment. In view of Article 26, Paragraph 1 of the Administrative Penalty Law, the facts of the Appellee’s violation set forth in the Original Disposition should be dealt with under the principle that criminal penalty should have priority. In addition, since the Appellee’s violation as alleged in the Original Disposition was still being tried, the Appellant’s authority to impose a fine was in a state of suspension before the criminal procedure was concluded and the Appellee was finally acquitted of his criminal acts. Therefore, the Appellant made a mistake by electing to render the Original Disposition to impose a fine on the Appellee before the criminal case was concluded in violation of Article 26 and Article 32, Paragraphs 1 and 2 of the Administrative Penalty Law. Hence, the decision to set aside the portion about the fine in the decision on administrative appeal and the Original Disposition is not legally inappropriate.