Since the government has made significant efforts to promote the control requirements for entry and exit of passengers with carried-on items, passengers can still ascertain and heed relevant requirements before exiting or entering Taiwan if they do not understand such requirements or still have questions, passengers should certainly assume the duty of care to comply with such requirements (Taiwan)
Nora Shih
The Taipei High Administrative Court rendered the 107-Su-1173 Decision of March 28, 2019 (hereinafter, the “Decision”), holding that since the government has made significant efforts to promote the control requirements for entry and exit of passengers with carried-on items, passengers can still ascertain and heed relevant requirements before exiting or entering Taiwan if they do not understand such requirements or still have questions, passengers should certainly assume the duty of care to comply with such requirements.
According to the facts underlying this Decision, the Plaintiff was about to depart from the Taoyuan International Airport for Malaysia when the security inspection personnel of the Aviation Police Bureau found cash of NT$800,000, which had not been declared orally or in writing, in his carried-on baggage. The Defendant returned NT$100,000, which is the amount that requires no declaration, on the spot pursuant to relevant requirements and confiscated the remaining NT$700,000, which had not been declared as required, pursuant to the 10703294 Disposition of May 30, 2018. As a result, the Plaintiff brought an administrative action pursuant to applicable statutory procedures.
According to the Decision, Article 12 of the Money Laundering Control Law and Article 3, Paragraph 1, Subparagraph 2 and Article 4, Paragraph 1, Subparagraph 2 of the Regulations Governing Cross-border Declaration and Reporting of Items Subject to Money Laundering Control, a passenger carrying cash of over NT$100,000 is required, upon exit or entry, to fill out the Entry/Exit Registration Form for Carried-on Cash, Securities, Gold and Articles of Passengers or Service Personnel on Transportation Vehicles at the customs before clearing the customs. Otherwise, the cash shall be confiscated by the customs. In addition, Article 7, Paragraph 1 of the Administrative Penalty Law provides that a penalty shall be imposed for any act which violates administrative law obligations willfully or negligently. The so-called “willfulness” refers to an actor’s perception of all objective constituting criteria or elements for violation of administrative law obligations and the willingness to carry out such constituting elements. “Negligence” means that although an actor is not intentional with respect to the occurrence of the constituting elements and facts for violation of administrative law obligations, still such actor should have noticed them but fails to do so or believes that they will not occur even though the actor foresees that they could occur according to the circumstance of such occurrence. In addition, Article 8 of the Administrative Penalty Law provides that although an actor shall not be exempt from an administrative penalty for ignorance of legal provisions, still the penalty may be reduced or exempt based on the circumstances.
It was further concluded in this Decision that although the Plaintiff had asserted that he had now known the declaration requirement due to his ignorance of laws, still control requirements for the entry and exit of passengers with carried-on items exist in various countries. In addition, the Defendant asserted that posters had been posted in conspicuous locations in the Taoyuan International Airport to remind passengers of the control requirements for the exit and entry of passengers with carried-on items, and the Plaintiff also did not dispute the fact that he had entered and exited Taiwan nine times year. Since the government has also made significant efforts to promote the requirements for the entry or exit of passengers with carried-on cash, securities, gold or articles, even though the Plaintiff did not understand the requirements or had questions, he could have ascertained and heeded relevant requirements in Taiwan before his entry or exit to avoid legal violations carelessly. Since the Plaintiff was a passenger exiting/entering Taiwan, he should have fulfilled the duty of care in order to comply with the above requirements. In addition, the Plaintiff should have paid attention to this matter and there was no justification for his inability to do so. Even though the Plaintiff did not know if it was necessary to make a declaration to the customs when exiting Taiwan with New Taiwan Dollars, he should have checked with the competent authority or the passenger service desk in the airport to learn about this requirement. Therefore, even though the Plaintiff was not intentional, it is still difficult to conclude that he was not liable for negligence. Hence, the Plaintiff should certainly be penalized in accordance with Article 7, Paragraph 1 of the Administrative Penalty Law. In addition, the Plaintiff also failed to argue any justification for exempting the penalty under Article 8 of the Administrative Penalty Law. Therefore, the Plaintiff’s lack of knowledge about his legal violation did not render his violation inevitable in this case. The Defendant had no room for discretion about the confiscation requirement involved in this case. Since it was found that the original disposition rendered by the Defendant was not inappropriate, the Plaintiff’s request to set aside the original disposition was groundless.