17 June 2021
The Supreme Administrative Court rendered the 109-Cai-2220 Ruling of December 11, 2020 (hereinafter, the “Ruling”), holding that an application for a temporary injunction is preconditioned by the existence of claims in the case, and the applicant can file such application only when it has a disputed legal relationship under public law and it is necessary to prevent the occurrence of significant damage or to avoid imminent danger.
According to the facts underlying this Ruling, the Interlocutory Appellant was a satellite channel program supplying enterprise (hereinafter, the “Satellite Channel Enterprise”) under Article 2, Paragraph 1, Subparagraph 4 of the Satellite Broadcasting Law and the satellite broadcasting business license which had been renewed by the Respondent for News Channel A would expire on December 11, 2020. The Interlocutory Appellant applied to the Respondent to renew the license in accordance with Article 18, Paragraph 1 of the same law. After a hearing procedure was carried out by the Respondent, its commissioners decided as a result of a meeting to reject the license renewal application (hereinafter, the “Original Disposition”). Before the Interlocutory Appellant brought this action, it applied to the original trial court for a temporary injunction in accordance with Article 298, Paragraph 2 of the Administrative Litigation Law and stated that the Respondent should temporarily approve the renewal of the satellite broadcasting business license for News Channel A with a term commencing on December 12, 2020 until the final decision is rendered in this administrative litigation case (hereinafter, “Claim 1”), and that the Respondent shall not grant or approve any application from a cable television system operator to change its channel to the channel at issue before the injunction procedure is concluded (hereinafter, “Claim 2”). The original ruling held: with respect to Claim 1, since the Interlocutory Appellant failed to expound its high probability of success in this litigation and the Original Disposition did not cause major damage or imminent danger to the Interlocutory Appellant, there is no need for a temporary injunction in this case for the time being; and with respect to Claim 2, since what the Interlocutory Appellant claimed is a channel position in a cable television system and involves a legal relationship under private law, the claim has no bearing on the dispute over the legal relationship under public law between the Interlocutory Appellant and the Respondent. Since the Ruling argued that the application does not meet the criteria under Article 298, Paragraph 2 of the Administrative Litigation Law, the Interlocutory Appellant’s application for a temporary injunction was rejected. The Interlocutory Appellant filed the interlocutory appeal.
According to the Ruling, Article 298, Paragraphs 2 and 3 of the Administrative Litigation Law indicate that a temporary injunction is a measure to temporarily expand the legal status of the applicant before the disputed legal relationship under public law is concluded by a final decision. To wit, after a ruling is issued to grant an temporary injunction to the applicant, the temporary state established under such ruling can be leveraged to realize the applicant’s right before the case is enforced, and the Respondent is also required to perform its obligation temporarily. However, a temporary injunction is preconditioned by the existence of claims in the case and can be granted only when the applicant has a disputed legal relationship under public law and it is necessary to prevent the occurrence of major damage or to avoid imminent danger.
It was further indicated in the Ruling that the legal relationship in this case is whether the Respondent should approve the Interlocutory Applicant’s application to renew its satellite broadcasting business license, rather than any dispute over the validity of the Respondent’s original disposition to issue the Interlocutory Appellant’s satellite broadcasting business license (hereinafter, the “Original Approval Disposition”). Therefore, the consideration of whether the Interlocutory Appellant is subject to the circumstance under Article 298 Paragraph 2 of the Administrative Litigation Law concerning “the necessity of granting a temporary injunction” to “prevent major damage” should be based on whether the Original Disposition will cause major damage to the Interlocutory Appellant rather than whether the invalidity of the Original Approval Disposition will cause major damage to the Interlocutory Appellant. Under Article 6 of the Satellite Broadcasting Law, a satellite broadcasting operation requires an application to the competent authority for a license. Under Article 11, Paragraph 1, the term of a satellite broadcasting business license is 6 years. Therefore, the Original Approval Disposition is an administrative disposition with a term and would become invalid upon expiration of the term. The Interlocutory Appellant should not use the channel at issue according to the Original Approval Disposition, since the disadvantage resulting from the invalidity of such administrative disposition due to the expiration of the term is an inherent effect of an administrative disposition with a term. When applying for the Original Approval Disposition, the Interlocutory Appellant should have assessed the scale and risk associated with its business investment and trading contracts and planned the accommodating measures to deal with any disadvantages if the license becomes invalid after six years of licensed operation, since the disposition was rendered with a term. Since the Interlocutory Appellant chose to apply for the licensing disposition that conferred benefits in nature and enjoyed such benefits, it should certainly assume the disadvantages after the license expires. The damage or aggravation of the damage caused by the Interlocutory Appellant’s failure to properly deal with the expiration is also the Interlocutory Appellant’s fault. If the Interlocutory Appellant failed to conduct proper planning and suffered from the damage due to its belief that its license renewal application would certainly be granted, the Interlocutory Appellant is at fault for such damage and should not be found to suffer from the major damage under Article 298, Paragraph 2 of the Administrative Litigation Law. In addition, the temporary injunction system is designed to prevent major damage or avoid imminent danger. The so-called “damage” or “danger” should refer to the direct damage or danger to the Interlocutory Appellant itself subjectively in the litigation. The Interlocutory Appellant’s assertion that its damage cannot be repaired or restored with money since all employees of the news channel will lose their jobs, and the legal representative or major shareholders of the Interlocutory Appellant will be damaged with the viewing public affected is also unacceptable.
For further information, please contact:
Emily Chueh, Lee Tsai & Partners
lawtec@leetsai.com
