Taiwan - Opinions And Views in Practice / Legal News Update January 2020.

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11 February, 2020

 

The Ministry of Economic Affairs (“MOEA”) issued a letter interpretation to amend its previous interpretation regarding shareholder’s cumulative voting right.

 

The MOEA previously issued a letter interpretation on exercising voting right by shareholders of a publicly traded company under Paragraph 3, Article 181 of Company Act.  In that letter dated June 5, 2019, the MOEA indicated that by virtue of the cumulative voting system set forth in Article 198 of Company Act, the number of votes that each share is entitled to cast should be the same as the number of directors to be elected, and such votes may be cast for a single candidate or be allocated among several candidates. 

 

However, there is no explicit restriction in the language of the law as to how many candidates may the votes from one share be allocated.  The MOEA incidated then that the principle of cumulative voting was not violated if the votes that one share was entitled to cast were allocated to a number of candidates that is more than the number of directors to be elected.  On October 25, 2019, the MOEA, by its letter interpretation No. Jing-Shan-Zhi-10800086000, amended its previous position regarding the maximum number of candidates that the votes from one share could be allocated under the cumulative voting system set forth in Article 198 of Company Act.  The MOEA’s new position is that, given the number of votes that each share is entitled to cast shall be determined based on the number of directors to be elected, the maximum number of candidates that the votes from each share may be allocated shall be determined on the same basis, namely, the number of directors to be elected. (Yen Chen, Esq.)

 

The Ministry of the Interior amended the required items and the prohibited items in the “Confirmation of Building Status” annexed to the Standardized Contracts for the Sale of Existing Real Estate, and those in the “Description of the Real Property”

 

On October 31, 2019, the Ministry of the Interior announced the amendment to the the required items and the prohibited items in the “Confirmation of Building Status”, Exhibit I annexed to the Standardized Contracts for the Sale of Existing Real Estate, and those in the “Description of Real Property”, providing that the following items must be disclosed in both of the aforesaid documents: (a) whether there is a relay pump or water tank in the building, and if yes, the floor on which it is located, and (b) whether there is a mobile phone base station on the top of the building.  The amended regulations will become effective May 1, 2020. (Roy Su, Esq.)

 

The Supreme Administrative Court held that in an action to vacate the administrative penalty, the administrative agency shall bear the burden of proof.

 

In its Judgement 108 No. Pan-Zhi-533, the Supreme Administrative Court held when interpreting Article 133 of the Code of Administrative Actions (concerning the court’s ex officio investigation), the court’s ex officio investigation should have a certain limit.  

 

Given that Article 277 of the Code of Civil Procedure (concerning burden of proof) is applicable mutatis mutandis to procedures of administrative actions, a party should bear the unfavorable result if it fails to fulfill its burden of proof.  In addition, administrative penalties are similar to criminal penalties, therefore principles of presumption of innocence and in dubio pro reo shall be applicable.  

 

The administrative agency shall prove the facts constituting the elements of penalty to an “essentially true” extent (beyond 99.8%) so as to deem the facts to be true.  If the truthfulness of the facts is unclear, the court shall deem such alleged facts as nonexistent and find against the administrative agency. (Hector Chin, Esq.)

 

 

For further information, please contact:  

 

C. Y. Huang, Partner, Tsar & Tsai Law Firm

CYHuang@TsarTsai.com.tw