22 March 2021
The Grand Justices of the Judicial Yuan rendered Judicial Interpretation No. 797 of the Judicial Yuan (hereinafter, the “Interpretation”) on November 20, 2020, holding that the requirement that service by deposit shall be effective after the service is completed pursuant to law in accordance with Article 74 of the Administrative Procedure Law is justified and does not violate the principle of due process under the Constitution.
According to the facts underlying this Decision, the applicants, the judges of the Administrative Litigation Division of the Taoyuan District Court and of the Administrative Litigation Division of the Shihlin District Court, all believed that Article 74 of the Administrative Procedure Law applicable at the time of the trials (hereinafter, the “Provisions at Issue”) fails to specifically stipulate that a service by deposit is not valid until a certain period of time has elapsed after the date of deposit in violation of due process under Article 16 of the Constitution. Therefore, they ruled to stay the trials and applied for constitutional interpretation. X, another applicant who was dissatisfied with a recheck decision of the National Bureau of Taxation of the Northern Area in a business tax matter, filed an administrative appeal and brought a relevant administrative action, which was subsequently rejected by a final adjudication rendered by the Supreme Administrative Court. X applied for constitutional interpretation due to the belief that the Provisions at Issue applied by the Supreme Administrative Court in its final adjudication violate Article 16 of the Constitution for failing to provide that service by deposit will not become effective until 10 days has elapsed after the deposit date.
The Interpretation pointed out that from the angle of protecting the people’s rights and interests, the service of an administrative document sometimes involves the starting point of a remedy period for lawsuits filed by the people, which relates to the basic right concerning due process protected under Article 16 of the Constitution, and sometimes is not directly related to the remedy for lawsuits filed by the people even though it still involves other freedom and rights of the people protected under the Constitution. Therefore, the procedural requirements for the service of administrative documents should meet the principle of due process under the Constitution. From the perspective of enhancing administrative performance, administrative power is proactive, positive, dynamic and comprehensive in nature. Administrative acts are comprehensive and diversified in nature, while the circumstances of administrative documents which should be served on the people are also very complicated and should not be generalized. The service of all kinds of administrative documents is related not only to the commencement of a remedy period for the people or the smooth progression of administrative procedure but also to the starting point of the legal validity of an administrative act (such as the starting point of the legal validity of an administrative disposition and the end point of a public law claim) and to enhanced administrative performance to safeguard public interest. In particular, the service of administrative documents is part of the procedure that should be followed for relevant systems. Relevant agencies have their considerations concerning their professional requirements for enhancing administrative performance as to how to formulate the procedural requirements for the service of administrative documents and can certainly use their discretion to formulate such requirements without violating the due process requirement under the Constitution. Since this falls within the scope of legislation, this should be properly respected in determining the propriety of the procedural requirements for the service of administrative documents.
It was further stated in this Interpretation that the Provisions at Issue specifically provide: “(Paragraph 1) Where service cannot be executed in the manner set out in the preceding two articles, it may be effected by leaving the document for service with the local self-governing authority or police authority of the place where the service is intended to be executed, and preparing a notice of service in duplicate, one of which shall be posted on the door at the domicile, residence, business office, business establishment or workplace of the person to be served upon and the other shall be either delivered to one of his neighbors for forwarding to the person to be served upon or placed in the mailbox or at a suitable location of the place where service is intended to be executed. (Paragraph 2) In the circumstance referred to in the preceding paragraph, if the service is carried out through the post office, the document for service may be left with the post office at the place where service is intended to be executed. (Paragraph 3) The office with which a document is left shall keep the document in custody for three months from the date of receipt thereof.” This shows that service deposit is an auxiliary and alternative means which may be used only when none of ordinary service, supplementary service or service by leaving rejected processes at the place of abode (see Articles 72 and 73 of the Administrative Procedure Law) succeeds. The effect of ordinary service, supplementary service or service by leaving rejected processes at the place of abode is all preconditioned by the recipient’s awareness of the document for service, and service by deposit, as an auxiliary or alternative means for the above manners of service, should also effectively inform the recipient in order to be sufficient. The service stipulated by the Provisions at Issue requires the document for service to be posted, forwarded or placed first before it is deposited at the self-governing authority, police authority or post office of the place where the service is intended to carry out so that the people can go to the nearest place to pick up the document at any time in order to realize the purpose of service. The requirement that the document should also be maintained for three months by the above authority (agency) has taken into account the security of the document, secrecy and the probability of receiving the document by the people. With respect to an administrative procedure initiated based on a citizen’s application, when the citizen provides information about the service location to the administrative agency, the citizen can certainly foresee the service of administrative documents. In case of an administrative procedure initiated ex officio by an administrative agency, the administrative agency is also required to confirm the service location of administrative documents when giving the people the opportunity to state their opinions, and the people should, in turn, foresee service of administrative documents. Even if it is not required by law to provide an opportunity to the people to state their opinions in advance, the administrative agency is still required to carry out the service by determining the abode, domicile, office, business location or work premises for service of processes based on information such as the recipient’s previous registered household, office, business location or work premises. Since the above service locations are the locations of the recipient’s daily activities, service by means of posting, forwarding or placement should put the recipient in a state where s/he is aware of the service. After public interest factors such as service by deposit as an auxiliary or alternative means for ordinary service, supplementary service or service by leaving rejected processes at the place of abode, diversity of administrative acts, the safeguard of the people’s right to receive lawful notification and administrative performance are generally considered, it is sufficient to conclude that the procedure and manners of service by deposit designed under the Provisions at Issue are meticulous and proper. Therefore, the requirement that completion of service of an administrative document by deposit pursuant to law shall serve as the starting point of the validity of service is still justified and does not violate the due process principle under the Constitution.
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Nora Shih, Lee Tsai & Partners
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