The Supreme Administrative Court rendered the 109-Pan-196 Decision of April 9, 2020 (hereinafter, the “Decision”), holding that the acts conducted by an agency without jurisdiction would be defective disposition acts unless authorization is obtained out of a relationship of delegation or entrustment.
According to the facts underlying this Decision, the Appellant did not receive a hotel business registration certificate and was reported that he operated hotel business illegally in the premises at issue. The Appellee (the Tourism Bureau of Kaohsiung City Government) subsequently conducted an investigation. Since room reservation information such as room types, room prices and contact numbers for the premises at issue was posted in room reservation websites to provide daily rental services, and travelers’ sharing of their lodging experience was also available, the Appellee sent officials to perform an audit. The contact number in the reservation website was dialed, and the person who picked up the phone indicated that he was in another location and it was not convenient for him to accommodate the audit. It was also found that the owner of the premises at issue was the Appellant, who was also the user of the contact number. The Appellee subsequently notified the Appellant to state his opinion. After the Appellant separately requested another time to be arranged, the Appellee submitted a written statement indicating that “after the daily rental services were posted, no one actually came and stayed and since the operation of daily rental services was quite troublesome, the rental services stopped shortly thereafter, and there was no malicious intent to break the law. Previously when the request to conduct an inspection was received, since it was during business hours, I could not go there to open the door.” After considering the facts and evidence as investigated and the written statement, it was concluded that the Appellant engaged in an act of operating hotel business without a hotel business registration certificate. Therefore, a fine was imposed on the Appellant, who was also requested to close down the business (hereinafter, the “Original Disposition”) in accordance with the Article 24, Paragraph 1 and Article 55, Paragraph 5 of the Statute for Tourism Development. Dissatisfied, the Appellant brought an administrative action to set aside the decision on administrative appeal and the Original Disposition. After the original decision was rendered to dismiss the action, the Appellant appealed.
According to the Decision, the jurisdiction of an administrative agency is defined by its organic law and regulation or other administrative regulations in accordance with Article 11 of the Administrative Procedure Law. The jurisdiction shall not be established or changed. In addition, Article 15 of the same law provides that an administrative agency may delegate part of its authority to its subordinate agency. An administrative agency may delegate part of its authority to an unaffiliated administrative agency pursuant to laws and regulations. Therefore, the agency that renders an administrative disposition should be an agency with territorial and subject matter jurisdiction. An act conducted by an agency without jurisdiction would be a defective disposition act unless authorization is received from its superior or parallel agency out of the relationship of delegation or entrustment.
It was further indicated in the Decision that Article 3, Paragraphs 1 and 3 of the Regulations Governing the Hotel Business, which was formulated pursuant to the authorization under Article 66, Paragraph 2 of the Statute for Tourism Development, provide that the central competent authority for the hotel business shall be the Ministry of Transportation and Communications and, in case of a municipality under the direct jurisdiction of the Executive Yuan, the municipal government. Except as otherwise stipulated, the administration of matters such as the establishment, licensing, operating equipment and facilities, operation and management and the personnel shall be conducted by municipalities under the direct jurisdiction of the Executive Yuan. Paragraph 1 of Article 4 provides that in addition to company registration or commercial registration, registration application shall be filed with the local competent authority in order to operate a hotel business and the operation may not commence until the registration certificate is received. Therefore, if a hotel business is to be operated in Kaohsiung City, an application shall be filed with Kaohsiung City Government for a registration certificate, and sanctions against operators who operate hotel business without a registration certificate fall within the authority of Kaohsiung City Government. It is understood that although the Appellant is an agency affiliated with Kaohsiung City Government, if it is not mandated and delegated by Kaohsiung City Government pursuant to laws and regulations such as Article 15 of the Administrative Procedure Law, this calls into question if it has the authority to impose a sanction on the Appellant for violation of Article 24, Paragraph 1 of the Statute for Tourism Development in accordance with Article 55, Paragraph 5 of the same statute. The Original Disposition was rendered because the Appellee concluded as a result of its investigation that the Appellant operated hotel business in the premises at issue without a hotel registration certificate. However, there was nowhere in the evidentiary materials that shows that Kaohsiung City Government authorized and delegated the authority to impose sanctions in this case in accordance with Article 15 of the Administrative Procedure Law, and this relates to the legality of the decision on administrative appeal and the Original Disposition. The original trial court was unlawful for rendering a decision without conducting investigation ex officio. This affected the conclusions in the Original Decision. Even though this was not pointed out in the gist of appeal, still the reasons of this appeal should be deemed valid due to the above mistake of the original decision, and the original decision was reversed and remanded to the original trial court for another legally appropriate adjudication.