August 2017
The requirement that all advertising materials shall be prohibited and penalized regardless of whether they impair environment and health was found unconstitutional by Judicial Interpretation No. 734(Taiwan)
Lenore Chen
The Judicial Yuan rendered Judicial Interpretation No. 734 (hereinafter, the "Interpretation") on December 18, 2015, declaring unconstitutional a competent authority's public announcement on environment polluting acts as authorized pursuant to the Waste Disposal Law that all advertising materials, regardless of whether they impair environment and health, should be prohibited and penalized if they are set up in locations and manners not approved by the competent authority by way of public announcement.
According to the Interpretation, Article 27, Subparagraph 11 of the Waste Disposal Law stipulates: "The following acts are strictly prohibited in designated cleanup areas: ...(11) other environment polluting acts announced by competent authorities" (hereinafter, the "Requirement at Issue"). The Tainan City Government made a public announcement which failed to consider if advertising materials as set up impair environmental and national health and if the impairment meets the types of environment polluting acts under Article 27, Subparagraph 10 of the Waste Disposal Law and deemed such setup a polluting act which is generally prohibited and penalized. This has exceeded the scope of authorization under the basic law and does not meet the principle of legal reservation. Such announcement shall become void upon expiration of three months after the promulgation date of the Interpretation at the latest.
According to the reasons of this Interpretation, Article 1 of the Waste Disposal Law provides that its legislative objectives are "effective cleanup and disposal of wastes, improvement of environment and sanitation, and maintenance of national health." The public announcement of the Tainan City Government indicates: "Announcements: (1) Hanging, attaching, spray painting, brush painting, erecting, setting, inserting, placing and setting up advertising materials on roads, walls, pillars, electricity poles, trees, bridges, gutters, ponds or other land fixtures are environment polluting acts. (2) The "roads" set forth in the preceding paragraph shall refer to highways, streets, lanes and alleys, safety islands, sidewalks, arcades or places for public passage..."ÉThis public announcement regarded setting up advertising materials without the approval of the competent authority in designated places and manners as environment polluting acts without considering if the installation of the advertising materials impair environment, sanitation and national health and if the types of environment polluting acts set forth in Article 27, Subparagraph 10 of the Waste Disposal Law are constituted and thus prohibited and penalized such acts indiscriminately. This exceeds the scope of authorization under the basic law and does not meet the principle of legal reservation. The competent authority is required to revise relevant requirements pursuant to the above gist so that any person setting up advertising materials without the approval of the competent authority still does not constitute unlawful environment polluting act until a specific threshold of environmental pollution is reached. Said public announcement shall become void upon expiration of a three-month period after the promulgation date of the Interpretation at the latest.
The Judicial Yuan rendered Judicial Interpretation No. 734 (hereinafter, the "Interpretation") on December 18, 2015, declaring unconstitutional a competent authority's public announcement on environment polluting acts as authorized pursuant to the Waste Disposal Law that all advertising materials, regardless of whether they impair environment and health, should be prohibited and penalized if they are set up in locations and manners not approved by the competent authority by way of public announcement.
According to the Interpretation, Article 27, Subparagraph 11 of the Waste Disposal Law stipulates: "The following acts are strictly prohibited in designated cleanup areas: ...(11) other environment polluting acts announced by competent authorities" (hereinafter, the "Requirement at Issue"). The Tainan City Government made a public announcement which failed to consider if advertising materials as set up impair environmental and national health and if the impairment meets the types of environment polluting acts under Article 27, Subparagraph 10 of the Waste Disposal Law and deemed such setup a polluting act which is generally prohibited and penalized. This has exceeded the scope of authorization under the basic law and does not meet the principle of legal reservation. Such announcement shall become void upon expiration of three months after the promulgation date of the Interpretation at the latest.
According to the reasons of this Interpretation, Article 1 of the Waste Disposal Law provides that its legislative objectives are "effective cleanup and disposal of wastes, improvement of environment and sanitation, and maintenance of national health." The public announcement of the Tainan City Government indicates: "Announcements: (1) Hanging, attaching, spray painting, brush painting, erecting, setting, inserting, placing and setting up advertising materials on roads, walls, pillars, electricity poles, trees, bridges, gutters, ponds or other land fixtures are environment polluting acts. (2) The "roads" set forth in the preceding paragraph shall refer to highways, streets, lanes and alleys, safety islands, sidewalks, arcades or places for public passage..."ÉThis public announcement regarded setting up advertising materials without the approval of the competent authority in designated places and manners as environment polluting acts without considering if the installation of the advertising materials impair environment, sanitation and national health and if the types of environment polluting acts set forth in Article 27, Subparagraph 10 of the Waste Disposal Law are constituted and thus prohibited and penalized such acts indiscriminately. This exceeds the scope of authorization under the basic law and does not meet the principle of legal reservation. The competent authority is required to revise relevant requirements pursuant to the above gist so that any person setting up advertising materials without the approval of the competent authority still does not constitute unlawful environment polluting act until a specific threshold of environmental pollution is reached. Said public announcement shall become void upon expiration of a three-month period after the promulgation date of the Interpretation at the latest.
