Article 16 of the Constitution protects the people’s right to appeal and to litigate. When people’s rights are violated by the public authority, they have the right to institute administrative litigation in accordance with due process to assure proper remedy. The exact content of this procedural fundamental right, including the layers of review, procedure and related requirements, must be realized by the legislative authority through the enactment of proper statutes in accordance with due process that takes into consideration the category and nature of the litigation, the purpose of the litigation policy and the function of the litigation system, among other things. Whether a relevant procedural law is appropriate requires a comprehensive evaluation that depends upon such factors as the subject matter the litigation is concerned with, the severity and scope of the infringement on the fundamental rights, the public interests [the law] intends to pursue, and the availability of alternative procedures and the costs of possible procedures, among other things. (see J. Y. Interpretation No. 663)
The service of documents concerning an administrative appeal and litigation, in accordance with the respective regulations under the Administrative Appeal Act and Administrative Litigation Act, is the in-person delivery of documents to the parties themselves or other related individuals; or, in the event it is not possible, through other means to ensure that [parties] are in the position of knowing or capable of knowing the content of the documents so that they can decide whether to act necessarily to protect their individual rights. To ensure that individuals do in fact acknowledge the content of documents, individuals should have the right to be lawfully notified, which, in turn, shall be protected by the due process of law. As far as the service of an administrative appeal decision is concerned, it is incredibly critical given that it relates to the right of the individual to learn of its content and to institute administrative appeal on the disagreeable part. Article 47, Paragraph 1 of the Administrative Appeals Act stipulates: “The service of documents concerning the administrative appeal documents shall indicate the residential, business or office address of the appealer(s), inter-pleader(s) or their representative(s), be carried over to the postal service and delivered through the means of certified mail.” Paragraph 2 states: “In the event documents concerning the administrative appeal cannot be delivered in accordance with the methods stated in the previous paragraph, the documents may be delivered by the an agent dispatched by the government agency handling the administrative appeal or by the agency which rendered the original administrative decision or the police department in that jurisdiction, and be certified by the person executing the service of process.” Paragraph 3 also states: “In addition to the above two paragraphs, the service of administrative appeal documents shall be governed by, mutatis mutandis, Articles 67 to 69, 71 to 83 of the Administrative Proceedings Act.” Therefore, as a matter of principle, the documents concerning an administrative appeal shall be delivered to the parties in person (see Article 71 of the Administrative Proceedings Act). If it cannot be done in accordance with Articles 71 and 72 of the Administrative Proceedings Act, the documents may be deposited at the office of the local governing authority, police department, or postal service, along with two copies of service notification, one being posted at the door front of the residence, business or office of the party to be delivered and the other copy be handed over to the neighbor for forwarding to or placed in the mailbox of the party to be delivered or other appropriate location as the means for depository service of process. The deposited office shall maintain the documents for three months since the day of deposit (see Article 73 of the Administrative Proceedings Act). Therefore, given that the parties to be delivered should be able to acknowledge and receive the documents through the depository service of process, the purpose of such delivery has been achieved and the service of process should take effect.
The purpose of the administrative appeal and litigation is to handle the disputes concerning public laws between people and the state, with the purpose of protecting the rights and interests of the people and ensuring the legitimate exercise of the executive power of the state in accordance with the law (see Article 1, Paragraph 1 of the Administrative Appeals Act and Article 1 of the Administrative Proceedings Act). Although the Legislature may enact statutes to govern the layers of review, procedures, and other relevant requirements for administrative appeals and proceedings while taking into consideration the functions and nature of administrative appeals and proceedings, these statutes should nevertheless satisfy the due process requirement under the Constitution. Although Article 73 of the Administrative Proceedings Act does not explicitly provide the effective date for depository service of process, as in Article 138, Paragraph 2 of the Civil Procedure Act, given that an individual who file administrative appeals or institute administrative proceedings should indicate the address of his/her residence, office or business on the complaint so that the administrative agency that handles the administrative appeal or the Administrative Court may serve documents upon the appropriate parties (see Article 56, Paragraph 1 of the Administrative Appeals Act and Article 57 of the Administrative Proceedings Act). In the event the administrative agency or court cannot serve documents to the above-stated addresses in accordance with Articles 71 and 72 of the Administrative Proceedings Act, depository service of process is the natural alternative to make the parties for the delivery know the content of the documents. In that regard, the depository service is a conscientious and careful process to ensure that the parties are capable of receiving the documents. Furthermore, service of process in the administrative appeals and litigation is an indispensable requirement that intends to ensure the public interest in speedy proceedings. Given that depository service enables the receiving parties to quickly learn of the matter and to retrieve the relevant documents, having the depository service take effect upon the completion of the process should have preserved the people’s right to be legally notified and satisfies the due process requirement under the Constitution, thus does not infringe the right to file administrative appeals and to institute legal proceedings under Article 16 of the Constitution.
Dependent on their differences in purposes, nature, or functions, administrative and civil litigation may differ in their rules on the categories of suits, whether prerequisite proceedings are available, the standing of parties, or the statute of limitations for motions to be made. While there are similar mechanisms between the Administrative Proceedings Act and the Civil Procedure Act, their substantive provisions do not need to be identical except those important provisions that relate to the right to litigate protected under the Constitution. Although certain parts of the Administrative Proceedings Act apply, mutatis mutantis, the Civil Procedure Act in consideration of streamlining the statutory provisions, it does not necessarily mean the two should have rules that mirror each other. As far as the system of service of process is concerned, the conditions of individual rights under the impact of depository service are highly complex, and therefore should be carefully distinguished. If the receiving party of depository service should retrieve documents on the same day the documents are deposited, the effect is the same as servicing agency tenders to the receiving party the documents as they meet. Should there be a period being added for the depository service to take effect, it then amounts to a discriminatory treatment. Conversely, for those who retrieve documents several days after the time of deposit, while the period within which claims can be asserted or rights can be maintained may have been inevitably shortened, given that the individual parties should have gone through the administrative procedure and appeals prior to the litigation, and should have expected the possibility of service of documents from the administrative agency or court at any time, if there are indeed reasons such as employment and travel for which individuals cannot receive service documents in time, they may designate agents to receive service documents or take other measures in advance to avoid adverse consequences on their rights that may result from depository service or untimely retrieval of documents. As a result, even though the timing for depository service of administrative appeals or litigation documents to take effect can affect the timing for a party to take certain legal action in a litigation, whether the legislative policy should be the same as the present Article 73 of the Administrative Proceedings Act, which stipulates that depository service takes effect upon its completion, or should mimic after Article 138, Paragraph 2 of the Civil Procedure Act, which stipulates that service takes effect in ten days since the day of the deposit, or should rather take a longer or shorter period than ten days, shall be subject to the discretion of the Legislature and under the premises that the due process requirement under the constitution is not violated. Therefore, the mere fact that Article 73 of the Administrative Proceedings Act does not stipulate that the service shall take effect in ten days since the day of deposit, as stated in Article 138, Section 2 of the Civil Procedure Act, shall not, in and of itself, be deemed to have violated the principle of equality.
The system of service of process is crucial to whether people’s right to instigate administrative appeals and litigation under the Constitution can be realized. Recognizing the fact that individuals may be temporarily absent from their residence for service of documents due to employment, travel or other reasons, and the need to avoid depository service during the party’s absence adversely affecting people’s rights by making them not aware of the content of the deposited documents in time, Article 138, Paragraph 2 of the Civil Procedure Act was amended on February 7, 2003 and promulgated on September 1 of the same year, providing for depository service which takes effect ten days after the documents are deposited, a more adequate protection over individuals’ right to instigate legal proceedings. Although, as illustrated above, the Legislative Yuan did not stipulate the same rule in the Administrative Appeals Act or the Administrative Proceedings Act, the procedures and ways under Article 73 of the Administrative Proceedings Act meets the due process requirement under the Constitution and does not violate the principle of equality. In order to more adequately and effectively protect individuals’ right to instigate administrative appeals and litigation, relevant governing agencies should conduct a timely review of the service of documents in the current system of administrative appeals and litigation to ensure that it is keeping pace with time, taking into consideration the life style of modern society and work conditions of the people, as well as the systemic justice of the entire legal regime (Systemgerechtigkeit).
Translated by Professor Dr. Chi CHUNG.