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  • Interpretation
  • No.402
  • Date
  • 1996/05/10
  • Issue
    • Do the Regulations Governing the Supervision of Insurance Agents, Brokers and Adjusters by imposing such punitive administrative sanction violate Article 23 of the Constitution?
  • Holding
    •        For any punitive administrative sanction on the person who violates the obligation imposed by the administrative law, which concerns the restriction of the people*s rights, its component and legal effects shall be prescribed by statutory law. Although the statutory law may authorize power to the supplementary ordinances, in order to comply with the intent of Article 23 of the Constitution, the purpose, scope and content of that authorization should be concrete and definite and then the ordinances should be promulgated based on that authorization. Article 177 of the Insurance Act prescribes that the Regulations Governing the Supervision of Insurance Agents, Brokers and Adjusters should be enacted by the Ministry of Finance. Though the competent authority of the said Article may enact ordinances or regulations prescribing the conduct of those professionals, due to the lack of concrete and definite authorization of the Insurance Act on the components and legal effects of the punishment applicable to the abovementioned persons acting in violation of the obligation, the punitive administrative sanction on the insurance agents, brokers, adjusters and other respective professionals violated the obligation as prescribed in Article 48, Paragraph 1, Subparagraph 11, of the Regulations Governing the Supervision of Insurance Agents, Brokers and Adjusters, and was apparently enacted against the abovementioned intent of protecting the people*s rights under the Constitution; hence, from the date of this Interpretation, said provision shall become void within one years.
  • Reasoning
    •        In order to comply with the intent of Article 23 of the Constitution, for any punitive administrative sanction on persons, which violates the obligation imposed by the administrative law that concerns the restriction of the people*s rights, its component and legal effects shall be prescribed by statutory law. Hence, for any enactments of ordinances authorized by the law concerning the restriction of the freedom and rights of the people, the components and legal effects of such authorization shall comply with the requirements of concretization and definitude. For the law which merely provides general authorization, its determination may be based on the related meaning in the entirety of the law and not be limited to the wording of any particular provisions. The ordinances, enacted in accordance with this kind of general authorization, may provide detailed or technical regulations related to its parent law but shall in no event straightforwardly enact any punitive administrative sanction beyond the scope of authorization of the law. This issue has been interpreted several times by this Yuan.     
      
    •        Article 177 of the Insurance Act prescribes that the Regulations Governing the Supervision of Insurance Agents, Brokers and Adjusters shall be enacted by the Ministry of Finance. The competent authority may enact ordinances or regulations prescribing the conduct of the insurance agents, brokers, adjusters and other related professionals. However, regarding the conduct of the abovementioned professionals who violated the obligation, except for the punishment expressed in Article 167, Paragraph 1, of the same Act, the said authorization article did not actually concretely and definitively provide the components and legal effects to be punished. Article 48, Paragraph 1, Subparagraph 11, of the Regulation Governing the Supervision of Insurance Agents, Brokers and Adjusters, which was enacted and promulgated by the Ministry of Finance on November 4, 1993, in accordance with the abovementioned authorization, prescribes that for the insurance agents, brokers and adjusters acting in violation of the related insurance ordinances or regulations enacted or approved by the Ministry of Finance, except as provided otherwise by the laws, the Ministry of Finance may, subject to the degree of severity, impose a sanction of a warning, interdict their business for more than one month but not more than three years, or revoke their license to practice. Such punishment, interdiction of business or revocation of license, even though regulated by the Ministry of Finance on the basis of public welfare, is a kind of punitive administrative sanction and shall be prescribed by the statutory law or the ordinance with concrete and definite authorization by law in order to comply with the intent to protect the people*s rights. The said Article 48, Paragraph 1, Subparagraph 11, of the Regulations Governing the Supervision of Insurance Agents, Brokers and Adjusters, which prescribes the components and legal effects of the punishment for the abovementioned professionals, overrode the authorization of the law and was also contrary to the abovementioned intent to protect the people*s rights under the Constitution. In considering the necessity of such regulation and the time needed for the amendment of the regulations, the said Article 48, Paragraph 1, Subparagraph 11, of the Regulations Governing the Supervision of Insurance Agents, Brokers and Adjusters shall become void within one years from the date this Interpretation. Any other punitive administrative sanctions contained in the said Regulations of administration concerning the restriction of the people*s rights shall be promptly examined and amended. 
      
    • *Translated by Assistant Professor Y. K. Huang.
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