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  • Interpretation
  • No.538
  • Date
  • 2002/01/22
  • Issue
    • Is the relevant provision of the Regulations on the Supervision of the Construction Business regarding the replacement of registration certificates for the construction business in former war zones consistent with the principles of equality and legitimate reliance?
  • Holding
    •       It is provided in Article 15, Paragraph 2, of the Construction Act that “the regulations governing the supervision of the construction business shall be prescribed by the Ministry of the Interior,” thus generally delegating the power to the Ministry of the Interior to prescribe the regulations governing the supervision of the construction business.  Such clause of delegation, though failing to specify the contents and scope of such delegation, can nevertheless enable one to infer from the construction of the law as a whole that the lawmakers have intended to authorize the authority-in-charge, based on its administrative and professional considerations, to set forth such rules and regulations governing the construction business as the requirements for the registration of such business, the guidelines for the construction business and personnel employed by such business, the matters subject to evaluation and supervision by the authority-in-charge and so on. (Reference may be made to J. Y. Interpretation No. 394).  Under Articles 7, 8 and 9 of the Regulations on the Supervision of the Construction Business, as amended and promulgated by the 
      
    • Ministry of the Interior on June 1, 1993, a registration certificate in the form of either Grade A, Grade B or Grade C shall be issued to a construction business filing for registration, based on such conditions of the individual business as the size of its capital, the number of qualified engineers employed by the business, and the amount of previous revenues generated by the same, etc., and, based on the grade specified in such certificate, the construction business is allowed to undertake construction projects subject to the restrictions on the scale and value of such projects (refer to Article 16 of the said Regulations).  Such norms, which impose restrictions on the freedom of the people to run business, are necessary to enhance public interests and to ensure the safety of the people and their properties by improving the technological levels of the construction industry and assuring the quality of the construction projects. In addition, Article 45-1, an amendment thereto, provides, “Any construction business in Kinmen County or Lianjiang County of Fujien Province that has been registered under the Implementing Rules for the Supervision of Construction Business issued by the Kinmen War Zone Executive Committee or the Provisional Rules for the Supervision of the Construction Business issued by Lianjiang County shall, within three years as of the date of amendment to and implementation of the Regulations, i.e., June 1, 1993, have its old registration certificate replaced with a new one pursuant to Articles 7 through 9 of the Regulations; failure to so replace the relevant certificate will result in either reduction of the grade consistent with the criteria set forth in the Regulations or the cancellation of the registration certificate.” Such amendment is introduced to cope with the fact that the original registration certificate received by any construction business pursuant to the Implementing Rules for the Supervision of the Construction Business issued by the Kinmen War Zone Executive Committee or the Provisional Rules for the Supervision of the Construction Business issued by Lianjiang County is no longer legally valid upon the termination of the special governance in the war zones of Kinmen County and Lianjiang County of Fujien Province on November 7, 1992. The aforesaid provision is essential to implement the graded supervision of the construction business and to achieve uniformity in supervision of the construction business.  In view of the circumstances that the replacement of such certificate may be done pursuant to Articles 7 to 9 and that a transitional period is granted to the construction business for the accomplishment of the process, the protection of the legitimate reliance is not violated. Furthermore, in light of the universal application of such provision to all the construction business in Kinmen County and Lianjiang County of Fujien Province, it is not in violation of the purpose of Article 15, Paragraph 2, of the Construction Act, nor is it in contradiction to the relevant provisions of Articles 7 and 23 of the Constitution with respect to the protection of the rights of the people.  Nevertheless, in order to promote the sound development of the construction industry and to ensure the protection of the people’s rights under the Constitution, it is proper that the conditions of grading for the construction business and the restrictions on the scale and value of the construction projects to be undertaken by such business and other relevant matters should still be prescribed by law or any rule or regulation expressly enabled by law since they involve significant restrictions on the freedom of the people to run business.
      
  • Reasoning
    •       It is provided in Article 15-II of the Construction Act that “the regulations governing the supervision of the construction business shall be prescribed by the Ministry of the Interior,” thus generally delegating the power to the Ministry of the Interior to prescribe the regulations governing the supervision of the construction business.  Such clause of delegation, though failing to specify the contents and scope of such delegation, can nevertheless enable one to infer from the construction of the law as a whole that the lawmakers have intended to authorize the authority-in-charge, based on its administrative and professional considerations, to set forth such rules and regulations governing the construction business as the requirements for the registration of such business, the guidelines for the construction business and personnel employed by such business, the matters subject to evaluation and supervision by the authority-in-charge and so on. (Reference may be made to J. Y. Interpretation No. 394).  Under Articles 7, 8 and 9 of the Regulations on the Supervision of the Construction Business, as amended and promulgated by the Ministry of the Interior on June 1, 1993, a registration certificate in the form of either Grade A, Grade B or Grade C shall be issued to a construction business filing for registration, based on such conditions of the individual business as the size of its capital, the number of qualified engineers employed by the business, and the amount of previous revenues generated by the same, etc., and, based on the grade specified in such certificate, the construction business is allowed to undertake construction projects subject to the restrictions on the scale and value of such projects (refer to Article 16 of the said Regulations), which results in restrictions on the freedom of the people to run business.  However, this is in light of the fact that the operation of the construction industry requires the kind of professional technologies as well as the tools and equipment that will have a direct impact on the safety of the people and their properties.  Thus, enabled by Article 15-II of the Construction Act, the authority-in-charge has, based on its administrative and professional considerations, set forth such rules and regulations governing the construction business as the grading and registration of such business and the matters subject to evaluation and supervision by the authority-in-charge and so on to improve the technological levels of the construction industry and assure the quality of the construction projects.  It is in line with the purpose of Article 23 of the Constitution and not contradictory to the requirements of the Constitution with respect to the protection of the rights of the people.
      
    •       The implementation of any administrative law or regulation requires that the authority that enacted or issued such law or regulation, in making any amendment thereto or repealing the same pursuant to statutory procedure, also give consideration to the protection of the legitimate reliance of the party subject to such law or regulation.  Except under the circumstances that an expiration date of any law or regulation is prescribed in advance or that any law or regulation ceases to apply due to change of circumstances, where the issue of legitimate reliance does not exist, the repeal of or amendment to any law or regulation necessitated by public interests that may have injured the objectively shown interests of the people under any substantive law arising out of legitimate reliance will nonetheless be consistent with the constitutional intent to protect the rights of the people if reasonable remedial measures have been taken or a clause of transitional period has been provided. (Reference may be made to J. Y. Interpretation No. 525).  The Kinmen War Zone Executive Committee, considering the needs for the governance of the war zones, previously issued the Implementing Rules for the Supervision of the Construction Business and Provisional Rules for the Supervision of the Construction Business in Lianjiang County, which applied respectively to Kinmen County and Lianjiang County, to provide for special treatment of the grading and registration and supervision of the construction business located in such areas.  However, the original registration certificate received by any construction business pursuant to the aforesaid rules is no longer legally valid upon the termination of the special governance in the war zones of Kinmen County and Lianjiang County of Fujien Province on November 7, 1992.  As a result, the authority-in-charge introduced on June 1, 1993, an amendment to the Regulations on the Supervision of the Construction Business, i.e., Article 45-1, which provides, “Any construction business in Kinmen County or Lianjiang County of Fujien Province that has been registered under the Implementing Rules for the Supervision of the Construction Business issued by the Kinmen War Zone Executive Committee or the Provisional Rules for the Supervision of the Construction Business issued by Lianjiang County shall, within three years as of the date of amendment to and implementation of the Regulations, i.e., June 1, 1993, have its old registration certificate replaced with a new one pursuant to Articles 7 through 9 of the Regulations; failure to so replace the relevant certificate will result in either reduction of the grade consistent with the criteria set forth in the Regulations or the cancellation of the registration certificate.”  Thus, all the construction business in Kinmen County and Lianjiang are subject to the same rule without exception and they are subject to the same existing laws and regulations as the construction business anywhere else in this country in terms of their supervision and evaluation, which is essential to carry out the graded supervision of the construction business to promote public interests and to achieve uniformity in the application of laws and regulations to the construction business nationwide.  In view of the circumstances that a transitional period is provided for the application of the Regulations on the Supervision of the Construction Business and that the replacement of a registration certificate may be done pursuant to relevant provisions thereof, and, further, that the length of such transitional period is not arbitrarily determined or obviously unreasonable, the protection of the legitimate reliance by such construction business is therefore not violated.  The aforesaid provision of Article 45-1, therefore, is not in violation of the purpose of Article 15-II of the Construction Act, nor is it in contradiction to the relevant provisions of Articles 7 and 23 of the Constitution with respect to the protection of the rights of the people.
      
    •       Nevertheless, in order to promote the sound development of the construction industry and to ensure the protection of the people’s rights under the Constitution, it is proper that the conditions of grading for the construction business and the restrictions on the scale and value of the construction projects to be undertaken by such business, as well as such other relevant matters as the conditions of grading for the construction business, the placement of professional personnel, the establishment of the association or other important matters regarding improvements that may require consultation with experienced experts and participation of people engaged in the construction business, should still be prescribed by law or any rule or regulation expressly enabled by law since they involve significant restrictions on the freedom of the people to run business. 
      
    • *Translated by Vincent C. Kuan
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