June 2017
Since a telecommunication enterprise's change of business rules is factual change to its terms of service and does not represent any change to any penal law or regulation, Article 5 of the Administrative Penalty Law, which stipulates the principle that newer and lighter penalties shall apply, does not apply(Taiwan)
2017.4.12
Frank Sun
The Ministry of Justice issued the Fa-Lu-10603503580 Circular of April 12, 2017 (hereinafter, the "Circular") to communicate that since a telecommunication enterprise's change of business rules is factual change to its terms of service and does not represent any change to any penal law or regulation, Article 5 of the Administrative Penalty Law, which stipulates the principle that newer and lighter penalties shall apply, does not apply.
The National Communications Commission (hereinafter, the "NCC") had inquired of telecommunications operators about their provisions concerning violation of their business rules prior to June 2016. Since the provisions of the business rules were changed after the NCC's approval in June 2016, issues concerning the applicability of Articles 4 and 5 of the Administrative Penalty Law arose. This Circular was issued to provide a legal opinion to address these issues.
According to the Circular, Article 4 of the Administrative Penalty Law provides: "An act in violation administrative law obligations is punishable only if it is explicitly prescribed so by law or by any self-governance ordinance in force at the time when the violation is committed." This is the principle that penalties shall be stipulated by law and that no penalty may be imposed without specific legal requirement. The so-called "specific legal requirement" includes the constituting criteria and legal effect of penalty. Therefore, if the violation of business rules by a telecommunications enterprise is specifically stipulated under Article 27, Paragraph 1 and Article 65, Paragraph 1, Subparagraph 2 of the Telecommunications Law with respect to the constituting criteria and legal effect of the penalty, there is no issue of violating the principle that penalty shall be prescribed by law.
According to the Circular, Article 5 of the Administrative Penalty Law provides: "In the case of any change in law or self-governance ordinance after the commission of the act, the law or self-governance ordinance in force at the time when penalty therefor was initially imposed by the administrative agency shall apply; provided, however, that the provision most favorable to the person punished shall apply if the law or self-governance ordinance in force prior to the imposition of the penalty is more favorable to the penalized person." The so-called "any change in law or self-governance ordinance after the commission of the act" is limited to any change to a substantive law or regulation which has been released or promulgated, and the laws and regulations before and after the change should be consistent and have direct bearing on the duty or requirement of administrative penalties. In addition, statutory orders or self-governance rules are prescribed as authorized under laws or self-governance ordinances to supplement part of the duty or penal provisions. If any change of such requirements is sufficient to affect the imposition of administrative penalties, this will be certainly regarded as a change of laws or regulations under this article.
This Circular further pointed out that from the perceptive of Article 27, Paragraph 1 and Article 28 of the Telecommunications Law, although the business rules of a Type One telecommunications enterprise should be submitted for approval, still they are set independently by the telecommunications enterprise, not statutory orders set by the competent authority under legal authorization. Therefore, a telecommunication enterprise's change of business rules is factual change to its terms of service and does not represent any change to any penal law or regulation, and Article 5 of the Administrative Penalty Law, which stipulates the principle that newer and lighter penalties shall apply, does not apply.
Frank Sun
The Ministry of Justice issued the Fa-Lu-10603503580 Circular of April 12, 2017 (hereinafter, the "Circular") to communicate that since a telecommunication enterprise's change of business rules is factual change to its terms of service and does not represent any change to any penal law or regulation, Article 5 of the Administrative Penalty Law, which stipulates the principle that newer and lighter penalties shall apply, does not apply.
The National Communications Commission (hereinafter, the "NCC") had inquired of telecommunications operators about their provisions concerning violation of their business rules prior to June 2016. Since the provisions of the business rules were changed after the NCC's approval in June 2016, issues concerning the applicability of Articles 4 and 5 of the Administrative Penalty Law arose. This Circular was issued to provide a legal opinion to address these issues.
According to the Circular, Article 4 of the Administrative Penalty Law provides: "An act in violation administrative law obligations is punishable only if it is explicitly prescribed so by law or by any self-governance ordinance in force at the time when the violation is committed." This is the principle that penalties shall be stipulated by law and that no penalty may be imposed without specific legal requirement. The so-called "specific legal requirement" includes the constituting criteria and legal effect of penalty. Therefore, if the violation of business rules by a telecommunications enterprise is specifically stipulated under Article 27, Paragraph 1 and Article 65, Paragraph 1, Subparagraph 2 of the Telecommunications Law with respect to the constituting criteria and legal effect of the penalty, there is no issue of violating the principle that penalty shall be prescribed by law.
According to the Circular, Article 5 of the Administrative Penalty Law provides: "In the case of any change in law or self-governance ordinance after the commission of the act, the law or self-governance ordinance in force at the time when penalty therefor was initially imposed by the administrative agency shall apply; provided, however, that the provision most favorable to the person punished shall apply if the law or self-governance ordinance in force prior to the imposition of the penalty is more favorable to the penalized person." The so-called "any change in law or self-governance ordinance after the commission of the act" is limited to any change to a substantive law or regulation which has been released or promulgated, and the laws and regulations before and after the change should be consistent and have direct bearing on the duty or requirement of administrative penalties. In addition, statutory orders or self-governance rules are prescribed as authorized under laws or self-governance ordinances to supplement part of the duty or penal provisions. If any change of such requirements is sufficient to affect the imposition of administrative penalties, this will be certainly regarded as a change of laws or regulations under this article.
This Circular further pointed out that from the perceptive of Article 27, Paragraph 1 and Article 28 of the Telecommunications Law, although the business rules of a Type One telecommunications enterprise should be submitted for approval, still they are set independently by the telecommunications enterprise, not statutory orders set by the competent authority under legal authorization. Therefore, a telecommunication enterprise's change of business rules is factual change to its terms of service and does not represent any change to any penal law or regulation, and Article 5 of the Administrative Penalty Law, which stipulates the principle that newer and lighter penalties shall apply, does not apply.
