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Administrative Rule for property declaration No.4

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  • Last updated:2018-11-01
  • Count Views:994

Subject

Inquiry of the Secretary-General of the Control Yuan regarding the scope and time limit of publication of property declaration data in government gazettes and on the Internet. Please take note of the explanations provided below.

Description

1.     Handling in accordance with Official Letter No. 1021832955 issued by the Secretary-General of the Control Yuan on September 6, 2013

2.     Article 6 of the Act on Property-Declaration by Public Servants (hereinafter referred to as this “Act”) stipulates that “after accepting the declarations, the property declaration agencies (institutions) shall, within 2 months, review the received declarations, which will be compiled for public access. After accepting the declarations from the election candidates of the President and Vice President of the and of other public servants above county (city) level, the responsible property declaration agencies (institutions) shall, within 10 days, review the received declarations, which will be compiled for public access. Declarations made by the President, Vice President, Premier, Vice Premier, President and Vice President of the Legislative Yuan, Judicial Yuan, Examination Yuan, and Control Yuan, Officers of political affairs, legislators, mayors of special municipalities, and governors of counties (cities), in addition to the compliance as prescribed in the preceding paragraph, shall be published regularly in government gazettes and on the Internet. Rules governing review and public access of the declarations shall be promulgated by the Executive Yuan in collaboration with the Examination Yuan and Control Yuan.”( http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=I0070005). Authorizations are defined in Paragraph 3 of the same article. Paragraph 3, Article 12 of the Regulations Governing Examination and Browsing of Materials of Property-Declaration by Public Servants (hereinafter referred to as these “Regulations”) stipulates that “the agencies (institutions) in charge of processing of declarations shall cover the Personal ID Numbers (ARC Numbers), correspondence and permanent addresses, phone numbers, door plate numbers, or car licenses of the declarant, his/her spouse, and his/her minor offspring when applicants apply for access to property declarations.

3.     The aforementioned regulations only prescribe that sensitive personal information of the declarant must be covered when citizens apply for access to property declaration information. There are no clearly formulated regulations for publication of declared information in government gazettes or on the Internet, but anybody can browse property declaration information anytime when it is posted in gazettes and online. Based from the smaller scale argument to the larger one(argumentum a minore ad maius), the regulations set forth in Paragraph 3, Article 12 of the Regulations Governing Examination and Browsing are applicable mutatis mutandis to publication in government gazettes or on the Internet.

4.     As for the retroactivity principle, legal theory distinguishes between real retroactivity and non-real retroactivity. Non-real retroactivity refers to future validity for facts that occurred in the past and continue to exist after promulgation and enforcement of a certain law. In other words, the legal effect of the new law is linked to facts that already existed prior to promulgation and enforcement of the law (Judicial Yuan Interpretation No.605 - Concurring opinion by grand justices may be cited as reference). The regulations set forth in Paragraph 3, Article 12 of the Regulations Governing Examination and Browsing shall therefore be applied mutatis mutandis to publication of declared information on government gazettes and on the Internet. Declared information published on the Internet prior to July 2010 represents an existing fact that continues to exist after revision and enforcement of said regulations. The legal effect of the new law shall therefore apply to this existing fact (in other words, sensitive information shall be covered) in line with retroactive application or non-real retroactivity law.

5.     Publication of declared information of the President, Vice President, Premier, Vice Premier, President and Vice President of the Legislative Yuan, Judicial Yuan, Examination Yuan, and Control Yuan and their spouses and minor offspring in government gazettes and on the Internet within the required scope of statutory duties pertaining to property declaration by public servants based on a specific purpose (The specific purpose and the classification of personal information of the Personal Information Protection Act: Code 14) by agencies (institutions) in charge of processing of property declarations conforms to the regulations set forth in Article 16 of the Personal Information Protection Act (“Except the information stated in Paragraph 1 of Article 6, the government agency should use the personal information in accordance with the scope of its job functions provided by laws and regulations, and in compliance with the specific purpose of collection.” http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=I0050021 ). However, such disclosure shall be based on the principle of minimization of damage to the rights and interests of involved parties under the premise of facilitation of achievement of the stated purpose. Administrative Rule No. 10203507360 issued by this Ministry on July 5, 2013 may be cited as reference. Based on these observations, declared information posted online prior to July 2010 shall still conform to the required scope prescribed by the specific purpose as defined above. Personal information not within this scope shall not be disclosed to respect the rights and interests of the declarant and uphold the principle of proportionality.

6.     Based on the above observations, Paragraph 3, Article 12 of the Regulations Governing Examination and Browsing, which was amended on May 15, 2009, shall be enforced retroactive to October 1, 2008. Where property declarations made prior to July 2010 are held by the Judicial Yuan and contain sensitive personal information, such information must be covered prior to publication in government gazettes and online shall be pursuant to the provisions set forth in Paragraph 3, Article 12 of said regulations prior to publication.

7.     As for the time limit for online posting of declared information and the necessity of posting all past information declared by the declarant, this matter has been covered in Official Letter No. 10205024450 issued by this Ministry on September 9, 2013 which states that “In view of the large amount of declared data to be posted online and the statute of limitation period of only 5 years set forth in Article 15 of this Act, a draft amendment has been formulated with an added provision in Paragraph 3, Article 6 stipulating that property information declared within the last five years by declarants that meet the criteria of Paragraph 2 of the same Article shall be made public.” Prior to official amendment of said law, it is therefore recommended that the Judicial Yuan handle this matter independently within its scope of authority with reference to the contents of the aforementioned draft amendment.

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