The Ministry of Justice issued the Fa-Lu-10603508260 Circular of June 15, 2017 (the “Circular”) in response to a question from the Environmental Protection Administration of the Executive Yuan concerning when the statute of limitations on seeking payment of the air pollution control fee start to toll against an entity who has failed to file and pay such fee for a construction project (including illegal construction projects) that has been completed and existing for over five years.
According to the Circular, in determining the time of commencement for the statute of limitations of a public law claim, it must first be clarified whether the public law claim already existed under law; only when a public law claim has already necessarily occurred and is exercisable could the statute of limitation period be determined. If one must still wait for an administration decision before the public law claim may be formed, then it is not possible to calculate the statute of limitations period under public law prior to the issuance of the administrative decision.
The Circular expounded further on the subject “construction project (including illegal construction projects) that has been constructed and existing for more than five years without filing and paying the air pollution control fee” situation. Although the collection of the air pollution control fee by an administrative body is a property claim under public law and thus is governed by the first part of Article 131, Paragraph 1 of the Administrative Procedure Law, according to Article 5 and Article 17, Paragraph 2 of the Rules for Collecting Air Pollution Control Fees, such fees are paid only after the construction project owner has submitted the relevant project data and the competent authority has issued an administrative decision on the air pollution control fee owed, thus prior to the administrative decision, no public law claim has been formed yet, and the statute of limitations under public law has not started to run.