April 2017
The criteria for suspension and termination of operation due to material violation under the Water Pollution Control Law are not the only criteria for deciding the amount of a discretionary penalty, and determination of the amount of the penalty merely based on such criteria constitutes illegal abuse of discretionary power(Taiwan)
2017.1.5
Sean Liu
The Taipei High Administrative Court rendered the 105-Su-917 Decision of January 5, 2017 (hereinafter, the "Decision"), holding that the criteria for suspension and termination of operation due to material violation under the Water Pollution Control Law are not the only criteria for deciding the amount of a discretionary penalty, and determination of the amount of the penalty merely based on such criteria constitutes illegal abuse of discretionary power.
According to the facts underlying this Decision, the Plaintiff's underground oil pipeline burst, resulting in fuel leakage. Finding that this was a material act of massive discharge of pollutants that had seriously undermined water quality in the vicinity under the Water Pollution Control Law, the Defendant rendered the original disposition, in which the Plaintiff was fined NT$3 million. Dissatisfied with the original disposition, the Plaintiff filed administrative appeal, which was rejected. Therefore, the Plaintiff brought this action.
According to this Decision, Article 52 of the Water Pollution Control Law provides that the criteria for "material" violation of the subparagraphs of Article 30, Paragraph 1 shall be the criteria for "terminating an act or for suspending or terminating operation" rather than the criteria for the determining the amount of a discretionary penalty. Since the maximum penalty in the amount of NT$3 million cannot be imposed simply based on "materiality" as the only criterion, the Defendant was still required to consider the Plaintiff's culpability for violating its administrative law obligations, the extent of impact, the benefits received for violating the administrative law obligations and the financial strength of the Plaintiff under Article 18, Paragraph 1 of the Administrative Penalty Law before imposing a penalty. Otherwise, the Defendant would still be unlawful due to its abuse of discretionary power.
It was further held in the Decision that the Defendant had imposed the penalty for the oil pipeline leakage incident because it perceived the Defendant was liable for its willful act. However, this ran counter to the court's finding that the Plaintiff's violation is a negligence. This shows that the factual basis for the penalty was erroneous, not to mention the failure to give the considerations required under Article 18, Paragraph 1 of the Administrative Penalty Law before the maximum statutory penalty of NT$3 million was directly imposed on the Plaintiff. Since this constituted legal violation for abuse of discretionary power, the original disposition and the decision on administrative appeal were set aside.
Sean Liu
The Taipei High Administrative Court rendered the 105-Su-917 Decision of January 5, 2017 (hereinafter, the "Decision"), holding that the criteria for suspension and termination of operation due to material violation under the Water Pollution Control Law are not the only criteria for deciding the amount of a discretionary penalty, and determination of the amount of the penalty merely based on such criteria constitutes illegal abuse of discretionary power.
According to the facts underlying this Decision, the Plaintiff's underground oil pipeline burst, resulting in fuel leakage. Finding that this was a material act of massive discharge of pollutants that had seriously undermined water quality in the vicinity under the Water Pollution Control Law, the Defendant rendered the original disposition, in which the Plaintiff was fined NT$3 million. Dissatisfied with the original disposition, the Plaintiff filed administrative appeal, which was rejected. Therefore, the Plaintiff brought this action.
According to this Decision, Article 52 of the Water Pollution Control Law provides that the criteria for "material" violation of the subparagraphs of Article 30, Paragraph 1 shall be the criteria for "terminating an act or for suspending or terminating operation" rather than the criteria for the determining the amount of a discretionary penalty. Since the maximum penalty in the amount of NT$3 million cannot be imposed simply based on "materiality" as the only criterion, the Defendant was still required to consider the Plaintiff's culpability for violating its administrative law obligations, the extent of impact, the benefits received for violating the administrative law obligations and the financial strength of the Plaintiff under Article 18, Paragraph 1 of the Administrative Penalty Law before imposing a penalty. Otherwise, the Defendant would still be unlawful due to its abuse of discretionary power.
It was further held in the Decision that the Defendant had imposed the penalty for the oil pipeline leakage incident because it perceived the Defendant was liable for its willful act. However, this ran counter to the court's finding that the Plaintiff's violation is a negligence. This shows that the factual basis for the penalty was erroneous, not to mention the failure to give the considerations required under Article 18, Paragraph 1 of the Administrative Penalty Law before the maximum statutory penalty of NT$3 million was directly imposed on the Plaintiff. Since this constituted legal violation for abuse of discretionary power, the original disposition and the decision on administrative appeal were set aside.
