Our current system of administrative litigations is designed primarily to deal with actions for reversal [of unlawful administrative acts], and matters for which actions for reversal may be instituted are stated in the legislative form of generalized provisions. Where a person considers an administrative act unlawful or improper, thereby causing damage to his right or interest, he is entitled to bring administrative appeal or action. The so-called "administrative act" denotes an administrative act taken unilaterally by an administrative agency in the exercise of its public authority in respect of a specific matter in the area of public law with external legal effects, regardless of the term or form used and whether or not there is any subsequent action or any written statement to disallow the raising of any objection. Where an administrative agency, having issued a notification that directly affects the relation of rights and duties of the people and has actually produced effects externally, such as one that sets out the amount of fine payable, the method of payment, or the requirement of payment double the amount upon lapse of a specified period, considers the issue of such notification a non-administrative act on the grounds that there is subsequent action to be taken or that it contains a statement to disallow the raising of any objection, it is certainly inconsistent with the purpose of the Constitution in guaranteeing the people the right to bring administrative appeal and proceedings. When considered from the viewpoint of the general principles of jurisprudence, the situation even appears absurd where such a notification is lawfully prepared and issued by an administrative agency and then accepted without objection by the opposite party, who does not even realize that it constitutes an administrative act. The Administrative Court Precedent P. T. 96 (1959) holds that "the expression in Article 1 of the Administrative Appeal Act *an administrative act done by a government authority, resulting in injury to the right or interest of a person* refers only to the situation where an existing act causes direct damage to the right or interest of a person. The law does not permit the institution of an administrative appeal to seek administrative remedy in advance on the grounds of fear of a future administrative act with the possibility of causing damage to his right or interest," but merely interprets the relevant provisions of the Administrative Appeal Act and the Administrative Proceedings Act, and thus is not in conflict with the Constitution.
The Air Pollution Control Act provides in Article 23, Paragraph 1, that: "No transportation means shall emit air pollutants in excess of the amount permissible by the standards of emission." The Act further specifies in Article 43, Paragraph 1, the types of penalty and the maximum amounts of fines to be imposed in case of violation of such provisions, and Paragraph 3 of the same article enables the central government agency to establish criteria of fines. The purpose of the law in specifying the maximum amounts of fines and at the same time enabling the administrative agency to establish criteria of fines is of course more than simply vesting such agency with the function of applying the law. It is meant to recognize the professional competence of the administrative agency in making correct and reasonable judgment while formulating purpose-specific criteria of fines for excessive emission of air pollutants by transportation means by taking into consideration the factual circumstances of the act and based on its objective and reasonable findings, and also to avoid possible unfair conclusions as a result of arbitrary decisions in individual cases. Conversely, under Article 5 of the Criteria of Fines for Emission of Air Pollutants by Transportation Means, as amended and promulgated by the competent authority on February 15, 1993, the minimum amount of fine to be imposed is determined solely on the basis of "the time the violator appears and whether he appears before the authority" after he receives the notification of violation rather than based on any reasonable standard laid down in light of the legislative purposes by taking into consideration the factual circumstances of the act. Even though the maximum amount of fine prescribed thereby does not exceed the limit permissible under law, raising the minimum fine on the basis of the time the violator appears before the authority is inconsistent with the purposes intended by the enabling statute and is detrimental to the exercise of the power of discretion authorized by law to the competent agency. A fortiori, imposition of a penalty in the manner of a punishment for an offense against the order of administration by doubling the amount of fine, even if it may encourage the opposite party to voluntarily pay the fine so that the trouble of future enforcement may be avoided, is neither so prescribed nor authorized by the enabling statute. Furthermore, the criteria, by creating such a provision to require the opposite party to appear before the authority within ten days of receipt of the notification of violation or to pay a double fine upon lapse of such period, is contrary to the principle of legal reservation (Gesetzesvorbehaltprinzip). It is thus ordered that the part of the provision inconsistent with the essence of this Interpretation be rendered null and void within six months from the date of this Interpretation.
*Translated by Raymond T. Chu.