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  • Interpretation
  • No.313
  • Date
  • 1993/02/12
  • Issue
    • Shall Article 46 of the Rules Governing the Management of the Business of Civil Aviation be declared unconstitutional?
  • Holding
    •        The imposition of administrative fines upon any person who violates an obligation under the administrative law involves a restriction on the rights of such person. Therefore, the conditions triggering the sanction and its amount shall be set forth by law.   In case the law authorizes the promulgation of a regulation to supplement such triggering conditions, the contents and scope of such authorization shall be concrete and clear so that the regulation promulgated according to such law may be in compliance with Article 23 of the Constitution, which requires any restriction on the rights of the people to be set forth by law. Though the Rules Governing the Management of the Business of Civil Aviation (hereinafter the "Rules") are promulgated in accordance with Article 92 of the Civil Aviation Act (hereinafter the "Act"), for an administrative sanction imposed under Article 46 of the Rules by reference to Article 87, Subparagraph 7, of the Act against a violation of Article 29, Paragraph 1, of the Rules, the basis of its legal authorization is not clear, and, therefore, not in compliance with the abovementioned principle. It shall become null and void no later than one year after this interpretation is issued.
  • Reasoning
    •        The imposition of administrative fines upon any person who violates an obligation under the administrative law involves a restriction on the rights of such person. Therefore, the conditions triggering the sanction and its amount shall be set forth by law. In case the law authorizes the promulgation of a regulation to supplement such triggering conditions, the contents and scope of such authorization shall be concrete and clear so that the regulation promulgated according to such law may be in compliance with Article 23 of the Constitution, which requires any restriction on the rights of the people to be set forth by law. The Rules are promulgated pursuant to the authorization under Article 92 of the Act. Article 29, Paragraph 1, of the Rules provides: "The civil aviation business shall not carry passengers who do not hold an ROC visa or entry permit to the ROC." Said Paragraph was added by the Ministry of Transportation and Communications on September 15, 1988, in response to the lifting of Martial Law. A civil aviation business violating this rule is subject to punishment under Article 87, Subparagraph 7, of the Act by virtue of Article 46 of the Rules. However, there is a lack of clear authorization for such punishment, which, therefore, is not in compliance with the abovementioned principle. It shall become null and void no later than one year after this interpretation is issued. As to Article 87, Subparagraph 7, of the Act, which imposes administrative fines against "any other violation of this law or regulations promulgated pursuant to this law" (See also Article 86, Subparagraph 7), this provision contains a broad authorization without definitive scope with respect to the acts subject to such administrative sanction. Therefore, it should also be reviewed.  
      
    • *Translated by LEE & LI, ATTORNEYS-AT-LAW.
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