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  • Interpretation
  • No.394
  • Date
  • 1996/01/05
  • Issue
    • Is it constitutional for the Regulations Governing the Supervision of the Construction Industry and the Ministry of Interior directive to provide for punitive administrative action against construction companies?
  • Holding
    •        The Construction Act, by providing in Article 15, Paragraph 2, that “regulations governing the construction industry shall be established by the Ministry of Interior,” enables in general terms the establishment of regulations to govern the construction industry. While no specific prescription is made in such enabling clause with respect to the matters authorized and the scope of authorization, it may be presumed from the interpretation of the law as a whole that it is the intention of the legislators to enable the competent authority to establish, as it deems appropriate from the view of administrative specialization, rules and ordinances to regulate such matters as the requisites for the registration of construction companies, code of conduct of construction business operators and persons engaged in such business, and the performance appraisement and supervision to be carried out by the competent authority. Punitive administrative actions to be taken against construction companies, which, although related with the foregoing matters, do involve, nonetheless, restraints to be imposed on the right of the people, must therefore be made subject to prescription by law so far as the elements required for imposing such punishment and the legal consequences of the punishment are concerned. If the law authorizes administrative agencies to establish regulatory rules or ordinances for such purpose, the authorization must be clear and specific so as to be conformable with the essence of the principle of reservation of law (Gesetzesvorbehalt) embodied in Article 23 of the Constitution. It is prescribed by the Regulations Governing the Supervision of the Construction Industry, Article 31, Paragraph 1, Subparagraph 9, that “a construction business which has acted in violation of these Regulations or any construction law three times within a period of three consecutive years may be punished by cancellation of its certificate of registration subject to approval to be given by the central competent authority upon a report submitted by a provincial (or municipal) competent authority, and notice of such cancellation shall be published in the government gazette” and by the Ministry of Interior Directive (74) Tai-Nei-Ying-Tze No. 357429 (December 17, 1985) that “where the chief (or full-time) technician employed by a construction company under the Regulations Governing the Construction Industry is unable to perform his duties for a period of over one month due to being abroad or any other reason and the circumstance is no longer in existence, the company shall be subject to disciplinary admonition.” Such provisions, in the absence of clear and specific authorization granted by law, dictating elements and legal consequences for punitive administrative action to be taken against construction companies, are against the Constitutional intention of protecting the right of the people, and must cease to be operative as of the date of issue of this Interpretation.
  • Reasoning
    •        A punitive administrative action taken against a person for an act in breach of his duty under administrative law involves a restraint on his right, and the constituent elements required for and the legal consequence of such punishment must be prescribed by law. Where the law authorizes the establishment of supplementary rules in the form of administrative ordinances with respect to such constituent elements, such authorization must be made in a clear and specific manner insofar as the substance and scope of such authorization is concerned, before an administrative ordinance may be issued on the basis of such authorization, so as to be conformable with the essence of Article 23 of the Constitution whereby the right of the people may be restrained by prescription of law. (See our Interpretation No. 313.) Thus, to conform with the principle of reservation of law (Gesetzesvorbehalt), all matters related to restraint to be imposed on the freedom or right of the people must be regulated either by law or by ordinances issued by authorization of law. It follows that where the law authorizes the issue of ordinances involving restraint to be imposed on the freedom or right of the people, the purpose, scope and substance of such authorization must be clear and specific; and where the law grants general authorization, the ordinances issued by such general authorization of law may, aside from taking into consideration the relevant meaning expressed by the law as a whole rather than adhering rigidly to the language of any particular clause thereof, set forth therein only such details and technical matters as relating to the implementation of the enabling statute and shall not go beyond the scope of authority granted by the law by setting forth therein any punitive clause. This has been made distinctly clear in our Interpretation No. 367.
      
    •        The Construction Act, by providing in Article 15, Paragraph 2, that “regulations governing the construction industry shall be established by the Ministry of Interior,” enables in general terms the establishment of regulations to govern the construction industry. While no specific prescription is made in such enabling clause with respect to the matters authorized and the scope of authorization, it may be presumed from the interpretation of the law as a whole that it is the intention of the legislators to enable the competent authority to establish, as it deems appropriate from the view of administrative specialization, rules and ordinances to regulate such matters as the requisites for the registration of construction companies, code of conduct of construction business operators and persons engaged in such business, and the performance appraisement and supervision to be carried out by the competent authority. The provision of the Regulations Governing the Supervision of the Construction Industry, Article 30, Paragraph 1, Subparagraph 11, as amended by the Ministry of Interior on May 11, 1983 (changed to Article 31, Paragraph 1, Subparagraph 9, in the amended version of April 30, 1986, and unchanged to date) that “a construction business which has acted in violation of these Regulations or any construction law three times within a period of three consecutive years may be punished by cancellation of its certificate of registration subject to approval to be given by the central competent supervising authority upon a report submitted by a provincial (or municipal) competent authority, and notice of such cancellation shall be published in the government gazette” and the Ministry of Interior directive (74) Tai-Nei-Ying-Tze No. 357429 (December 17, 1985) that “where the chief (or full-time) technician employed by a construction company under the Regulations Governing the Supervision of the Construction Industry is unable to perform his duties for a period of over one month due to being abroad or any other reason and the circumstance is no longer in existence, the company shall be subject to disciplinary admonition.” Such clauses, albeit designed for the public interest and are within the scope of the supervisory power of the competent administrative agency, do involve restraints on the right of the people, to which the principle of reservation of law is applicable as we have explained above. It must be pointed out that the “punishment of cancellation of the certificate of registration” is a punishment for breach of duty defined by said regulations in the form of a penalty detrimental to the right and interest already acquired by the violator, and the disciplinary admonition, which leads to the legal consequence of cancellation of the certificate of registration, is also a type of administrative penalty, and that both must be based either on law or on clear and specific authorization of law to be conformable with the intent of the Constitution in safeguarding the right of the people.
      
    •        In conclusion, Article 15 of the Construction Act only enables the establishment of the Regulations Governing the Construction Industry, without granting any authority to cancel the certificate of registration, and the elements required for and the method of punishment for other acts in breach of duty are explicitly prescribed by Article 85 and Article 95 of the Act. Therefore, the Regulations Governing the Supervision of the Construction Industry, Article 31, Paragraph 1, Subparagraph 9, and the Ministry of Interior directive (74) Tai-Nei-Ying-Tze No. 357429 (December 17, 1985), in the absence of clear and specific authorization granted by law, dictating elements and legal consequences for punitive administrative action to be taken against construction companies, are in conflict with the Constitutional intention to protect the right of the people, and must cease to be operative as of the date of issue of this Interpretation.
      
    • *Translated by Raymond T. Chu.
      
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