August 2017
Preventive injunction litigation prohibiting specific act against an administrative disposition may be brought only during exceptional circumstances where the rights of a citizen would not be timely protected if the litigation is not allowed(Taiwan)
2016.09.23
Angela Wu
The Supreme Administrative Court rendered the 105-Cai-1168 Ruling of September 23, 2016 (hereinafter, the "Ruling"), holding that preventive injunction litigation prohibiting specific act may be brought against an administrative disposition only during exceptional circumstances where the rights of a citizen would not be timely protected if the litigation is not allowed.
The Presidential Office promulgated the Hua-Zhong-One-Yi-10500080991 Directive of July 27, 2016 to abolish the Red Cross Society Law. Therefore, the Red Cross Society of the Republic of China brought administrative action and motioned for provisional injunction maintaining a temporary status. According to the facts underlying the Ruling, the Interlocutory Appellant (the Red Cross Society of the Republic of China) asserted that if its establishment registration as a juristic person were to be revoked or if an entity other than the Interlocutory Appellant were to be allowed to set up an organization with the name and logo of the Red Cross Society of the Republic of China or with a name or logo containing "Red Cross" or anything similar, the rights and interests of foreign nationals receiving relief from the Interlocutory Appellant, the basic order under the ROC Constitution, public interest and the international standing of the Interlocutory Appellant would sustain material irreparable harms. Therefore, a motion was filed under Article 298, Paragraph 2 of the Administrative Litigation Law to request an injunction maintaining a temporary status, which prohibits the opposing party from (1) rendering an administrative disposition that revokes the juristic person establishment registration of the Interlocutory Appellant before the final decision of this administrative litigation is obtained and (2) rendering an administrative disposition that allows an entity other than the Interlocutory Appellant to set up an organization with a name or logo that contains "Red Cross" or anything similar before the final decision of this administrative litigation is obtained.
According to the Ruling, a citizen may file administrative appeal and pursue cancellation litigation after a disposition unfavorable to his or her interest or a dual-effect disposition which confers benefits upon a third party but is detrimental to such citizen is rendered. The reason is that no citizen will sustain any injury to his or her right or legal interest due to a disposition which has not yet been rendered. Therefore, except for special cases where a citizen's rights cannot be timely protected if his or her preventive injunction litigation is not allowed, there is no need for any citizen to file preventive injunction litigation prohibiting specific act against an administrative disposition to protect rights.
It was further held in the Ruling that with respect to the first assertion of the Interlocutory Appellant in this litigation, since the likelihood of the opposing party rendering a disposition to revoke the juristic person establishment registration of the Interlocutory Appellant was low, the Interlocutor Appellant had no immediate and pressing danger that warranted a preventive injunction against such disposition and there was no rights protection need. The second assertion of Interlocutory Appellant in this litigation was that the Legislative Yuan's abolishment of the Red Cross Society Law was unconstitutional. However, according to existing evidence and from a legal perspective, the conclusion that the abolishing act might be declared unconstitutional by the Grand Justices for obviously going beyond the scope of legislative discretion and abusing the legislative discretion could not be readily drawn. Therefore, it should be deemed that the Interlocutory Appellant had failed to expound the public legal relation for its contentions.
Finally, the Ruling rejected the interlocutory appeal of the Interlocutory Appellant for its failure to expound its claim and reasons for the preventive injunction maintaining a temporary status.
Angela Wu
The Supreme Administrative Court rendered the 105-Cai-1168 Ruling of September 23, 2016 (hereinafter, the "Ruling"), holding that preventive injunction litigation prohibiting specific act may be brought against an administrative disposition only during exceptional circumstances where the rights of a citizen would not be timely protected if the litigation is not allowed.
The Presidential Office promulgated the Hua-Zhong-One-Yi-10500080991 Directive of July 27, 2016 to abolish the Red Cross Society Law. Therefore, the Red Cross Society of the Republic of China brought administrative action and motioned for provisional injunction maintaining a temporary status. According to the facts underlying the Ruling, the Interlocutory Appellant (the Red Cross Society of the Republic of China) asserted that if its establishment registration as a juristic person were to be revoked or if an entity other than the Interlocutory Appellant were to be allowed to set up an organization with the name and logo of the Red Cross Society of the Republic of China or with a name or logo containing "Red Cross" or anything similar, the rights and interests of foreign nationals receiving relief from the Interlocutory Appellant, the basic order under the ROC Constitution, public interest and the international standing of the Interlocutory Appellant would sustain material irreparable harms. Therefore, a motion was filed under Article 298, Paragraph 2 of the Administrative Litigation Law to request an injunction maintaining a temporary status, which prohibits the opposing party from (1) rendering an administrative disposition that revokes the juristic person establishment registration of the Interlocutory Appellant before the final decision of this administrative litigation is obtained and (2) rendering an administrative disposition that allows an entity other than the Interlocutory Appellant to set up an organization with a name or logo that contains "Red Cross" or anything similar before the final decision of this administrative litigation is obtained.
According to the Ruling, a citizen may file administrative appeal and pursue cancellation litigation after a disposition unfavorable to his or her interest or a dual-effect disposition which confers benefits upon a third party but is detrimental to such citizen is rendered. The reason is that no citizen will sustain any injury to his or her right or legal interest due to a disposition which has not yet been rendered. Therefore, except for special cases where a citizen's rights cannot be timely protected if his or her preventive injunction litigation is not allowed, there is no need for any citizen to file preventive injunction litigation prohibiting specific act against an administrative disposition to protect rights.
It was further held in the Ruling that with respect to the first assertion of the Interlocutory Appellant in this litigation, since the likelihood of the opposing party rendering a disposition to revoke the juristic person establishment registration of the Interlocutory Appellant was low, the Interlocutor Appellant had no immediate and pressing danger that warranted a preventive injunction against such disposition and there was no rights protection need. The second assertion of Interlocutory Appellant in this litigation was that the Legislative Yuan's abolishment of the Red Cross Society Law was unconstitutional. However, according to existing evidence and from a legal perspective, the conclusion that the abolishing act might be declared unconstitutional by the Grand Justices for obviously going beyond the scope of legislative discretion and abusing the legislative discretion could not be readily drawn. Therefore, it should be deemed that the Interlocutory Appellant had failed to expound the public legal relation for its contentions.
Finally, the Ruling rejected the interlocutory appeal of the Interlocutory Appellant for its failure to expound its claim and reasons for the preventive injunction maintaining a temporary status.
