| Chapter I General Principles |
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| Article 1 | This Act is enacted to ensure the appropriateness, promptness, and consolidation of administration regarding disputes on measures of the servicemember rights, with due regard to protecting the servicemember rights, preserving good order and discipline in the armed forces, and buttressing military strength. |
| Article 2 | Unless otherwise stipulated by law, this Act exclusively applies in adjudicating disputes on matters regarding service status, public law pecuniary claims, merit, discipline, evaluation, and other administrative disposition or management measures wherein the servicemember and the agency, institute, military unit, military academy, non-departmental public body, or personal management authority (hereinafter Authority) are adversarial parties. |
| Article 3 | The relief addressing wronged servicemember rights shall proceed pursuant to the procedure stipulated in this Act vis-a-vis the petition for deliberation, appeal, re-appeal, and administrative litigation.
In matters of appeals filed by a servicemember, the commander, chief officer, responsible division, or inspection office (hereinafter Appeal Review Authority) at all levels shall take action pursuant to this Act. In matters of the petition for deliberation and re-appeal, the Servicemember Rights Protection Committee of the District Court of Military Justice (hereinafter Protection Committee) shall adjudicate by this Act. In matters of first-instance administrative litigation, the Service Tribunal of the High Court of Military Justice (hereinafter Service Tribunal) shall conduct an adjudication by this Act and the Administrative Litigation Law. |
| Article 4 | The Authority shall not engage in any acts of discrimination or unfair treatment against a servicemember filing a petition for deliberation, appeal, re-appeal, or administrative litigation pursuant to this Article. |
| Article 5 | No less favorable revision or decision by an Appeal Review Authority, Protection Committee, and Service Tribunal shall be made vis-a-vis the disagreement submitted by a servicemember in its complaint for appeal, re-appeal, petition for deliberation, or administrative litigation pursuant to this Act. |
| Article 6 | The execution of an administrative disposition or a management measure whereof the complaint is under review will not be suspended due to any proceeding pursuant to this Act.
Whereas there is an obvious suspicion vis-a-vis the lawfulness of an administrative disposition or a management measure, or whereas there will be irreparable damage caused due to its execution wherein the necessity is not mandated by critical public interest, before administrative litigation adjudicated by the Service Tribunal is commenced by the servicemember in such a disposition or measure, the Protection Committee, Appeal Review Authority, and the agency rendering disposition or measure may ex officio or by petition suspend the said execution in part or in whole. |
| Article 7 | Whereas the causes for the suspension of execution in paragraph 2 of the preceding Article cease to exist, or whereas there exists rebus sic stantibus, the Protection Committee, Appeal Review Authority, and the agency rendering disposition or measure may, by its authority or petition, vacate the said suspension of execution. |
| Chapter II Servicemember Rights Protection Committee of the District Court of Military Justice |
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| Article 8 | The District Court of Military Justice shall establish positions for assigned and retained committee members of the Servicemember Rights Protection Committee (hereinafter SRPC member) to comprise the Protection Committee or its branch committees in charge of adjudication of matters of petition for deliberation and re-appeal.
The Assigned SRPC members are assumed by the national defense legal officers affiliated with the District Court of Military Justice.
The Retained SRPC members are assumed by the disinterested community members, scholars, or experts selected and retained by the District Court of Military Justice with a 3-year term and may be selected and retained for a second term.
The credentials, selection and retention, discharge, and other related affairs vis-a-vis the Retained SRPC member in the preceding paragraph shall be promulgated by the Ministry of National Defense. |
| Article 9 | Matters of the petition for deliberation and re-appeal shall fall under the jurisdiction of the Protection Committee in the district where the original disposition or measure agency is located.
In receipt of the matters in the preceding paragraph, the Protection Committee, upon determining a lack of jurisdiction over the matter in whole or in part, shall, ex officio, transfer to the one that has jurisdiction and notifies the petitioner or re-appellant.
In matters of multiple and separately initiated petitions for deliberation or re-appeals by one servicemember, or related multiple petitions or re-appeals, the Protection Committee may, ex officio, decide to transfer to the one that first receives or of which the location is most closely connected for consolidation and adjudicates accordingly.
In cases where several Protection Committees have jurisdiction over one matter, the High Court of Military Justice shall designate one to exercise jurisdiction. |
| Article 10 | The decision of a petition or re-appeal adjudicated by the Protection Committee shall be made by a panel of two Assigned SRPC members and three retained SRPC members, and the proportion of any gender shall not be less than two-fifths among members of the panel.
The decision in the preceding paragraph shall be made by more than one-half of the members present in a full-attendance committee.
The Ministry of National Defense is the competent authority that enacts the regulatory rules for adjudication of petitions and re-appeals by the Protection Committee. |
| Article 11 | The SRPC member or clerk shall recuse itself from a petition or re-appeal matter in any of the following circumstances:
1. Where its spouse, former spouse, any of its relatives by blood within the fourth degree or relative by marriage within the third degree, head of a family or members of the family, or any person having previously such relationship with it, is the petitioner or re-appellant;
2. Where it has been involved in the administrative investigation, administrative disposition, management measure, or appealing procedure of the pending matter;
3. Where it is or was an agent or assistant of the party in the pending matter;
4. Where it was a witness or expert witness in the pending matter;
5. Where it has a conflict of interest in the pending case.
Where recusal of the SRPC member or clerk is required but the individual fails to recuse itself or there is sufficient evidence for determining that the individual may have prejudice while executing its duties, the party concerned may state the causes and file a motion to the Protection Committee requesting the recusal of such member or clerk.
The motion in the preceding paragraph shall enumerate the grounds and facts with convincing details. The SRPC member or clerk requested to be removed may propose its opinions vis-a-vis the motion.
In the case that an SRPC member’s recusal is motioned, the adjudication shall stay before the Protection Committee’s grant or dismissal of the motion. Nonetheless, provided that there is an emergency situation the necessary actions shall be taken accordingly.
The SRPC members are not allowed to take part in the procedure of granting or dismissing the motion for recusal.
In the case where the SRPC member or clerk fails to recuse itself in the circumstances prescribed in the preceding paragraph and is not requested to be recused by the petitioner or re-appellant, the Protection Committee shall order the recusal of such member or clerk ex officio. |
| Article 12 | The final and binding decision of the Protection Committee shall be binding to all the related agencies, institutes, military units, military academies, or non-departmental public bodies for the identical matters in the adjudication. |
| Chapter III Petition for Deliberation |
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| Section I Petition Filing |
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| Article 13 | Any administrative disposition by the Authority regarding service status, public law proprietary claims, merit, discipline, or evaluation that is deemed by the servicemember concerned as unlawful or obviously unjustifiable and thereby causes detriment to its rights or legal interests, the servicemember may, unless otherwise stipulated by law, file a petition for deliberation in accordance to this Act.
In cases where the Authority, due to its omission, fails to render, or renders a dismissal instead, a disposition regarding the statutory motion by the servicemember in the matters in the preceding paragraph within the statutory period, and thereby detriment is caused to its rights or legal interests, the concerned servicemember may, by filing a petition for deliberation, request the Authority render a disposition or disposition with specific substances.
The period in the preceding paragraph, if not expressly stipulated in any other laws, is two months from the date of the agency’s receipt of the motion. |
| Article 14 | Any person who is not on active service claiming damages caused by rights accorded, but infringed, due to service status, may file a petition according to the preceding Article. The survivors may file a petition for deliberation according to the preceding Article on behalf of the deceased servicemember whose property rights accorded by public laws are infringed. |
| Article 15 | A petition for deliberation shall be filed within 30 days from the next day of the date on which administrative disposition is served. In the event that the disposition is served during the navigation deployment, the 30-day period begins to run from the next day of the date on which the deployment berths at the domestic port.
A petition for deliberation shall be filed after the statutory period ends if it is premised on the omission by the Authority prescribed in Paragraph 2 of Article 13. If the statutory motion has been filed more than 3 years from the date of its receipt, the right to the petition shall be barred.
The date for filing the petition for deliberation is the date on which the original disposition agency or Protection Committee receives the petition pleading.
In case a petitioner, instead of filing a petition with the original disposition agency or Protection Committee with jurisdiction, mistakenly files a petition for deliberation with an agency without subject matter jurisdiction due to the failure to advise or erroneous advice by the original disposition agency vis-a-vis the Protection Committee with subject matter jurisdiction, the date for filing the petition for deliberation is the date that agency without jurisdiction receives the petition pleading. |
| Article 16 | A petition for deliberation shall be submitted in the form of a petition pleading bearing the following items:
1. The petitioner’s name, date of birth, service unit, rank and position or occupation, domicile, residence or affiliated garrison, and National Identification Number or identification document and number;
2. While there is a statutory agent or petition agent, its name, date of birth, occupation, domicile, residence or office, and National Identification Number or identification document and its number;
3. The original disposition agency;
4. The petition claims;
5. The facts and premises;
6. The date that the administrative disposition was served or made known;
7. The Protection Committee with which the petition is filed;
8. The evidence. A written copy or photocopy shall be attached if the evidence is documentary;
9. Any other petitions for deliberation or remedies that have been filed or are in process;
10. The year, month, and day of filing the petition for deliberation.
The petitioner and statutory agent shall sign its name or impress its seal on the pleading. Where an agent is retained for the petition, the agent shall sign its name or impress its seal on the pleading.
A photocopy of the administrative disposition shall be attached when the petition is filed.
Where the petition for deliberation is premised on the omission by the Authority prescribed in Paragraph 2 of Article 13, the items listed in Subparagraphs 3 and 6 of Paragraph 1 shall indicate the Authority that should have rendered the administrative disposition, the date of the motion, and the photocopy of the motion and record of the Authority’s receipt of the petition. |
| Article 17 | The identification of the original disposition agency shall be premised on the name bore on the disposition. However, if the administrative disposition is made by the supervisory agency ex officio and commands the inferior agency to execute, such supervisory agency shall be the original disposition agency.
In case the original disposition agency has been abolished or restructured, the replacement agency shall be deemed as the agency rendering disposition and accorded jurisdiction over the petition matter as prescribed in Paragraph 1, Article 9. |
| Article 18 | A petitioner shall prepare a petition pleading and file it with the Protection Committee for deliberation through the original disposition agency.
For the petition stipulated in the preceding paragraph, the original disposition agency shall first review the lawfulness and appropriateness of the disposition or omission. If it deems the petition is sustainable, the agency itself may revoke or amend the original disposition, render a disposition or a disposition with certain substances, and report to the Protection Committee.
In the case that the original disposition agency does not confer the petitioner’s pleading for revocation or amendment of the original disposition, render a disposition or a disposition with certain substances, within 20 days from the next day of the receipt of the pleading, the agency shall submit a written defense with all essential and related documents to the Protection Committee.
When the original disposition agency files its defense, a copy of the written defense in the preceding paragraph shall be sent to the petitioner.
When the petitioner files a deliberation petition with the Protection Committee, a photocopy or duplicate of the petition pleading shall be sent to the original disposition agency by the Protection Committee pursuant to the provisions of Paragraphs 2 to 4. |
| Article 19 | Whereas the original disposition agency fails to take action within the period stipulated in Paragraph 3 of the preceding Article, the Protection Committee may, ex officio or by the petitioner’s request, notify the original disposition agency to submit related documentary materials within 15 days. In case the documentary materials are not submitted within the period, the Protection Committee itself may make a decision without further ado. |
| Article 20 | Whereas the petitioner’s notice of disagreement with a disposition is submitted to the original disposition agency or the Protection Committee within the period stipulated in Paragraph 1, Article 15, its petition shall be deemed as filed within the statutory period. The Protection Committee shall notify the petitioner to rectify in compliance with Article 23 of this Act.
In case a petitioner, instead of submitting a notice of disagreement to the original disposition agency or Protection Committee with jurisdiction, mistakenly submits notice of disagreement to an agency without subject matter jurisdiction due to the failure to advise or erroneous advice by the original disposition agency vis-a-vis the Protection Committee with subject matter jurisdiction, its petition shall be deemed as filed ab initio with the Protection Committee with subject matter jurisdiction.
The agency in the preceding paragraph that receives the notice of disagreement shall transfer the case to the Protection Committee within 10 days and notify the petitioner. |
| Article 21 | After the petition is filed the petitioner may withdraw before the deliberation decision is served. The petitioner is barred from filing a petition for deliberation with the identical subject matter after its petition is withdrawn. |
| Article 22 | In the case that a petitioner deceases after the petition is filed, the heir(s) or other people legally entitled to succeed the rights or legal interests derived from the original administrative disposition may declare the assumption of the petition. However, if there is no legal interest derived from the petition decision or the petition is prohibited from being assumed due to its nature, the assumption is barred.
In the event of the assumption stipulated in the preceding paragraph, the certification of the succession of right shall be submitted to the Protection Committee within 30 days from the occurrence of the succession fact.
Where the person entitled to the assumption stipulated in Paragraph 1 fails to declare the assumption of a petition, the Protection Committee, upon being aware of the grounds for assumption, shall notify the person to assume the petition. If the person still fails to declare the assumption after the notification, the Protection Committee may order the person to continue the petition. |
| Article 23 | Whereas the Protection Committee concludes that the petition pleading, though rectifiable, fails to comply with the required form and process, the Protection Committee shall notify the petitioner to rectify within 20 days. |
| Section II Petitioner |
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| Article 24 | Anyone undertaking the obligation through an independent juridical act has the capacity to petition for deliberation.
Anyone without the capacity to petition for deliberation shall be represented by its statutory agent for actions in a petition.
Matters concerning the statutory agent in a petition for deliberation shall be subject to the Civil Code. |
| Article 25 | Two or more individuals may file a petition jointly against the identical subject matter of administrative disposition, and the petition joinders may designate one to three of them as representative(s). In case the representation is not specified, the Protection Committee may, through notice, request a designation made within a given time limit. The Protection Committee may ex officio be assigned if the representative(s) can not be designated within the limited time.
The designated representative(s) shall provide the Protection Committee with documentary proof at the time for the ab intio act in a petition.
After the designation or assignment of the representative(s), the representative(s) can still be substituted and the number of representatives may be changed.
The designation of representative(s) and the change in numbers or representative(s) prescribed in Paragraph 1 shall not take effect unless written notice in the name of all petition joinders is sent to the Protection Committee. |
| Article 26 | The representative(s), once designated, will act on behalf of all petition joinders in a petition. Nonetheless, the withdrawal of a petition should not be made without written consent by all petition joinders.
Whereas there are two or more representatives, every one of them may act independently on behalf of all petition joinders.
The representing power or authority of the representative(s) shall not terminate due to the decease, or loss of petition capacity of the other petitioners, nor shall it terminate due to the replacement of the statutory agent of the represented petitioner. |
| Article 27 | A petitioner may retain a person who is proficient in law or skilled in specialties as its petition agent. No more than three agents may be retained by every petitioner. A power of attorney shall be presented to the Protection Committee as the agent undertakes its initial delegated act in the petition.
The petition agent proscribed in the preceding paragraph may be deprived of representation if the Protection Committee deems the agent incompetent. In that case, a written notice should be sent to the petitioner.
The replacement, expansion, reduction, or discharge of the petition agent(s) shall not take effect unless a written notice is sent to the Protection Committee.
Whereas the termination of retention for a petition is proposed by the petition agent, the agent shall, within 15 days after it manifests the intention to terminate retention, maintain constant care of the rights or legal interests and take necessary action. |
| Article 28 | Other than the withdrawal of a petition, which shall not be granted without an exceptional retention, the petition agent is authorized to conduct all petition acts on behalf of the petitioner vis-a-vis the matters that it is retained for.
Whereas there are two or more petition agents, every one of them may act independently on behalf of the petitioner.
A petition agent may still represent the petitioner independently despite the retention not complying with the rules stipulated in the preceding paragraph.
Any factual statement made by a petition agent shall not be effective if such statement is revoked or rectified immediately by the petitioner appearing in person.
The power and authorization of the petition agent shall not terminate due to the decease, bankruptcy, or loss of petition capacity of the represented petitioner, nor shall it terminate due to the replacement of the statutory agent of the represented petitioner. |
| Article 29 | A petitioner or its agent may, with the permission of the Protection Committee, appear in the company of an assistant during a petition session.
The Protection Committee may, as it deems necessary, order the petitioner or its agent to be accompanied by an assistant to the session.
The Protection Committee may revoke the permission or cease further assistance if the assistant in the preceding two paragraphs is deemed incompetent.
Any statement made by an assistant appearing in person, if not revoked or rectified immediately by the petitioner or petition agent, will be regarded as the statement made by the petitioner or petition agent. |
| Section III Statute of Limitations and Period |
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| Article 30 | Whereas the petitioner fails to file a petition within the petition period stipulated in Article 15 due to a force majeure, military tasks, or other causes not imputable to the petitioner itself, the petitioner may, within 10 days after the cause terminates, move for restoration to status quo ante with a written statement filed with the Protection Committee. No motion for restoration to status quo ante may be filed after the one-year period has elapsed from the date of failure to observe the petition period.
The act of petition which should have been conducted before the expiration of the period shall be conducted at the same time when the motion for restoration to status quo ante is filed. |
| Article 31 | Whereas the original disposition agency erroneously advises the petition period, such agency shall rectify the error by notification, the statutory period shall begin to run from the next day of the date on which the notification is served.
Whereas the failure to advise the petition period or the erroneous advice without notification for rectification by the original disposition agency causes the delay of the petitioner’s filing if the petition is filed within one year from the next day of the date on which the disposition is served, the petition filing is deemed as if filed within the petition period. |
| Article 32 | In the following situations, the time needed for transportation shall be deducted in calculating a period fixed by the applicable law:
1. A Petition is filed with the Protection Committee by petitioner who does not domicile nor serve on active duty within the jurisdictional boundaries of the Protection Committee;
2. A petition filed with the Protection Committee through the original disposition agency by a petitioner who does not domicile nor serve on active duty within the jurisdictional boundaries of the original disposition agency.
3. Due to the situations proscribed in Paragraph 2, Article 20, the petitioner mistakenly files a petition with an agency other than the Protection Committee or original disposition agency prescribed in the preceding two subparagraphs but does not domicile nor serve on active duty within the jurisdictional boundaries of such agency.
The Ministry of National Defense shall prescribe the time needed for transportation which shall be deducted as provided in the preceding paragraph. |
| Article 33 | Except as otherwise provided by law, the Administrative Procedure Act shall govern the calculation of a period of time. |
| Section IV Petition Dossiers and Service of Documents |
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| Article 34 | The Protection Committee shall assign a clerk responsible for compiling the adjudication records, transcripts, decisions, and other documents or materials concerning the petition matters as a dossier and maintain them in compliance with laws.
The petitioner or the petition agent may apply to the Protection Committee for inspecting, hand-copying, photocopying, or photographing the documents included in the dossier, or for a written copy, photocopy, excerpted copy, reproduction, or duplication thereof with advanced expenses.
Except for any of the following items and regards, the Protection Committee shall not deny the application or request proscribed in the preceding paragraph:
1. The draft of a petition matter decision;
2. The documents concerning the adjudication of the petition matter or the preparation for a decision thereof;
3. With due regard to the third party’s legitimate rights which is required to keep in confidence; or
4. Other regards proscribed by laws or premised on national defense, military security, or public interests which are required to keep in confidence.
The Protection Committee shall specify the date, time, and place for the inspection, hand-copy, photocopy, or photographing of the documents included in the dossier stipulated in Paragraph 2.
The standard for fee-charging stipulated in Paragraph 2 shall be promulgated by the Ministry of National Defense. |
| Article 35 | The domicile, residence, office, place of business, or affiliated garrison of the petitioner, its representative, or petition agent shall be noted on the petition document for service and handed over to the post office for delivery with the postal service report for the petition document.
Whereas the petition document can’t be served as prescribed in the preceding paragraph, the Protection Committee may assign staff or request the original disposition agency, appropriate police department, or military agency to effectuate the service, and the service report should be made by the person effectuating the service.
Whereas the service of the petition document cannot be effectuated pursuant to the provisions of the two preceding paragraphs, it may be effectuated by depositing the paper with the town/city office, or village office in the district of the address where the service shall be effectuated. In such cases, two copies of the notice of service shall be made with one copy posted on the front gate of the domicile or residence, office, or place of business of the person to be served and the other copy placed in the mailbox or any other appropriate location of the place of service. If the postman is the person who effectuates service, the service may be effectuated by depositing the document at a neighboring post office.
Service by depositing proscribed in the preceding paragraph shall take effect 10 days from the day of the deposit. |
| Article 36 | The service of the petition document, except for the provisions in the preceding Article, shall be subject to the related provisions of the Administrative Procedure Act. |
| Section V Petition Adjudication |
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| Article 37 | The decision of a petition is a trial on the papers.
The Protection Committee may, if it considers necessary, notify the petitioner or any person involved to a designated venue to present its statement and take inquiry.
When the petitioner requests to state its opinion with justifiable reasons, the opportunity to appear at the designated venue to present its statement shall be accorded.
Whereas the petitioner or any person involved is not well-versed in Mandarin, the interpretation service shall be furnished, if deaf or mute, besides interpretation service, may be inquired by written communication or required to make a statement in writing as it sees fit. |
| Article 38 | If necessary, the Protection Committee may, ex officio or by petitioner’s request, notify the petitioner or its representative, agent, or assistant and the staff assigned by the original disposition agency to appear at the designated venue and session for oral argument. |
| Article 39 | The session of oral argument shall be presided over by the senior Assigned SRPC member, the procedure is as follows:
1. The clerk states the essential points of the matter;
2. The petitioner or petition agent makes factual and legal statements concerning the matter;
3. The original disposition agency makes factual and legal statements concerning the matter;
4. The agency or person involved makes a statement;
5. The petitioner, the petition agent, or the original disposition agency re-replies to the statements or replies by the adversary party;
6. The Protection Committee inquires the petitioner, petition agent, and the original disposition agency or other persons involved;
7. The petitioner makes its final statement.
Whereas the oral argument proscribed in the preceding paragraph is incomplete, additional oral arguments may be made. |
| Article 40 | In adjudicating a petition for deliberation, the Protection Committee shall assign a clerk to take adjudication records and file them in the dossier. The opinions of dissenting SRPC members shall be recorded upon request.
The record stipulated in the preceding paragraph may be supplemented with audio or video. Petition adjudication with oral argument session shall take transcript, and file as the attachment of the record in the preceding paragraph, and Article 212~219 of the Code of Civil Procedure shall apply mutatis mutandis. |
| Article 41 | A petitioner may present documentary evidence, physical evidence, or other evidence-taking. In case the Protection Committee sets up a peremptory period to present the evidence, the evidence shall be presented in that specific period. |
| Article 42 | The Protection Committee may, ex officio or by the petitioner’s request, order the holder(s) of the document or other items to present them, which the Protection Committee may retain such document or items.
The Protection Committee may retrieve the document or other items that are in the official’s possession or the agency’s custody.
The official or agency cannot refuse to comply with the retrieval prescribed in the preceding paragraph, except for impairing the national security or otherwise provided by other laws. |
| Article 43 | The Protection Committee may, ex officio or at the request of agencies (institutes), require related schools, juridical persons, organizations, or individuals with professional experience and knowledge to conduct the examination, inspection, or give expert testimony vis-a-vis essential items and evidence. The expert witness shall be assigned by the Protection Committee.
When the Protection Committee conducts the inspection proscribed in the preceding paragraph, the petitioner and other persons involved shall be notified of the date, time, and place to appear.
The expenses incurred due to the provisions in Paragraph 1 shall be borne by the Protection Committee and may be paid in advance by portion upon the request of the expert witness.
The conclusion of the examination, inspection, or expert testimony pursuant to Paragraph 1 shall not be regarded by the Protection Committee as the unfavorable premises for deliberation decision against the petitioner unless the petitioner has been given an opportunity to express its opinion.
While the petitioner is willing to bear the expense incurred by its request for the examination, inspection, or expert testimony, pursuant to Paragraph 1, but the Protection Committee considered otherwise, the request shall not be denied without justifiable reason.
While the conclusion of the examination, inspection, or expert testimony in the preceding paragraph is the premises for a favorable decision or adjudication for the petitioner, it may request the Protection Committee for reimbursement of necessary expenses within 30 days after the petition decision is final and binding. |
| Article 44 | The expert testimony of an expert witness in the provisions of the preceding Article shall be in written form. The Protection Committee may, as it deems necessary, request the expert witness appear at a designated venue for elaboration.
In case there is more than one expert witness, testimony may be given collectively. The individual testimony which is different from others shall be taken respectively by the Protection Committee.
The Protection Committee shall notify the expert witness of the permission to access the essential materials for the purpose of giving testimony if such materials are held under the custody of the original disposition agency or the Protection Committee. In that case, the extension and means of access may be limited.
The expert witness may request the Protection Committee to conduct the evidence-taking for the purpose of giving expert testimony. |
| Article 45 | Where the petitioner disagrees with the procedural ruling made by the Protection Committee during the petition session, an administrative litigation may be initiated as a complaint to such ruling along with the dissatisfaction with the petition decision. |
| Section VI Petition Decision |
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| Article 46 | A dismissal decision shall be entered if any of the following circumstances exists:
1. The petition pleading fails to comply with the required form and process and is unrectifiable or not rectified within a specific period designated for rectification by notice;
2. A petition is filed after the expiration of the period stipulated by this Act;
3. A Petitioner without the capacity to petition not represented by a statutory agent fails to be represented as required after the expiration of the designated period which is notified to rectify the defect;
4. The petitioner does not have a standing;
5. The original disposition has been vacated, or executed and the restoration of the status quo ante is unfeasible yet the petition is futile, or the disposition is extinguished;
6. The petition is premised on Paragraph 2, Article 13, but the Authority has made the administrative disposition which should have been made;
7. Filing a petition against a petition matter which has been adjudicated or withdrawn;
8. Filing a petition against the matter which is not the subject matter of the relief accorded by petition adjudication;
9. The petition does not comply with other statutory requirements.
Whereas the petitioner disagrees with the administrative disposition prescribed in Subparagraph 6 of the preceding Paragraph, it should file another petition.
If the petition filed as prescribed in Subparagraph 8 of Paragraph 1 is a claim that should be relieved through appeal but a petition is mistakenly filed instead, the Protection Committee should transfer it to the Appeal Review Authority for further proceeding by the appeal procedure and notify the petitioner and shall not directly render a dismissal decision without the aforementioned process. |
| Article 47 | Whereas the petition is without merits, the Protection Committee shall dismiss it by a decision.
Though the original administrative disposition premises on inappropriate grounds, the Protection Committee regards such disposition as justifiable given other grounds and confers the petitioner opportunities to make statements, the petition is deemed without merits.
While the petition is dismissed due to its fling after the expiration of the statutory period, the original administrative disposition is nonetheless obviously unlawful or unjustifiable, the Protection Committee may specify the concerns in the original disposition in the part of ratio decidendi. |
| Article 48 | Whereas a petition filed pursuant to Paragraph 1, Article 13 is considered meritorious, the Protection Committee shall revoke the original administrative disposition in whole or in part with a petition decision |
| Article 49 | Whereas a petition premised on dissatisfaction with omission by the Authority prescribed in Paragraph 2, Article 13 is considered meritorious, the Protection Committee shall designate a considerable time and order the Authority which should have made the administrative disposition make a certain administrative disposition within that period.
Whereas a petition premised on the disagreement with the dismissal prescribed in Paragraph 2, Article 13 is considered meritorious, the Protection Committee shall revoke the original dismissal in whole or in part and remand the case to the original disposition agency yet order such agency to render an appropriate disposition within the designated period. |
| Article 50 | Even if it regards the original disposition as unlawful or obviously unjustifiable, but the revocation or rectification of such disposition will cause substantial harm to the public interest, the Protection Committee may dismiss the petition after it takes into consideration the damages that the petitioner suffered, the extent of compensation, the prevention measures, yet all other matters and concludes that the revocation or rectification of the original administrative disposition will further frustrate the public interest.
In such a case prescribed in the preceding paragraph, the main text of the petition decision shall manifest the unlawfulness and obvious unjust of the original administrative disposition. |
| Article 51 | In concluding the decision in the preceding paragraph, the Protection Committee may take into consideration the damages the petitioner suffered due to the unlawful or obviously unjustifiable administrative disposition while declaring in the part of ratio decidendi that the original disposition agency shall engage with the petitioner for a compensation negotiation.
The negotiation in the preceding Paragraph shall operate as the negotiation stipulated in the State Compensation Law. |
| Article 52 | The Protection Committee shall make the petition decision within 3 months from the next day of the date on which it receives the defense submitted with the dossier compiled by the original disposition agency. In case notification for rectification has been sent pursuant to the stipulation of Article 23, the period begins to run from the day after the date on which the rectification is submitted. In the case that the rectification is not submitted, the period begins to run from the next day after the expiration of the designated period for rectification.
In case the petitioner rectifies and supplements with further causes within the petition decision period, the period for a petition decision begins to run from the next day after the Protection Committee receives the last supplement of causes.
In case the petition decision cannot be entered within the periods stipulated in the preceding two paragraphs, the period for the decision may be extended with a notice to the petitioner. Such extension shall be only once and not exceed 2 months.
In case the supplement with causes is submitted after the expiration of the extension period of the decision period, the petition decision period begins to run from the next day the Protection Committee receives such supplement with causes yet shall not exceed 2 months. |
| Article 53 | In case the petitioner deceases the petition proceeding shall be stayed before anyone who is entitled and assumes the petition.
Whereas a petition decision is premised on the existence of certain legal relationships which is pending in a litigation or other administrative relief procedure the Protection Committee may stay the petition procedure, immediately notifying the petitioner, until the legal relationship is affirmed.
Whereas the petition procedure stays as stipulated in the two preceding paragraphs, the petition decision period stipulated in the preceding Article may recommence from the date when the person entitled to assume or continue the petition procedure. |
| Article 54 | The petition decision shall bear the following items:
1. The petitioner’s name, service unit, rank and position or occupation, domicile, residence, or affiliated garrison;
2. While there is a statutory agent or petition agent, its name, occupation, domicile, residence, or office;
3. The main text, the facts, and the ratio decidendi, in case of a dismissal decision, the facts may be omitted;
4. The names of the SRPC members sitting on the bench;
5. Year, month, and date.
An authenticum of the petition decision shall be served upon the petitioner and the original disposition agency within 15 days after the decision is rendered. |
| Article 55 | An administrative litigation may be initiated, within 2 months from the next day of the date on which the petition decision is served, by the petitioner in the Service Tribunal with the juridical boundaries where the original disposition agency seats. In the case that the decision is served during the navigation deployment, the 2-month period begins to run from the next day of the date on which the deployment berths at the domestic port.
Whereas the original disposition agency fails to render a disposition pursuant to the provisions of Article 49 within the period designated by the Protection Committee, the petitioner may, within 2 months from the next day after the expiration of the designated period, initiate administrative litigation directly in the Service Tribunal with the juridical boundaries where the original disposition agency seats.
Whereas the petitioner disagrees with the administrative re-disposition by the original disposition agency pursuant to Article 49, the petitioner may initiate administrative litigation directly in the Service Tribunal with the juridical boundaries where the original disposition agency seats. The period for the initiation of administrative litigation stipulated in Paragraph 1 shall apply mutatis mutandis.
In the case that the petitioner disagrees with the petition decision by the consolidated adjudication pursuant to Paragraph 3, Article 9, the petitioner may initiate administrative litigation in the Service Tribunal with the juridical boundaries where the Protection Committee rendering the petition decision seats.
In the litigation stipulated in the 4 preceding Paragraphs, the Service Tribunal shall apply mutatis mutandis Small Claims Proceeding stipulated in the Administrative Litigation Act in litigation against the disposition of demerit, reprimand, and monetary amount of subject matter or value is no more than NTD 500,000 vis-a-vis public law proprietary claims, otherwise, Ordinary Proceedings stipulated in the Administrative Litigation Act shall apply mutatis mutandis |
| Article 56 | A legal notice should be remarked in the petition decision that if the petitioner disagrees with the petition decision, it may, within the 2-month period stipulated in Paragraph 1 of the preceding Article, initiate an administrative litigation in the Service Tribunal with the juridical boundaries where the original disposition agency or the Protection Committee conducting consolidation eats.
The Protection Committee shall rectify with a notice if the period for administrative litigation in the legal notice stipulated in the preceding Paragraph is erroneous, the period shall recommence from the next day of the date on which the rectification notice is served.
Whereas the person fails to initiate an administrative litigation due to the failure of the Protection Committee to remark a legal notice as stipulated in Paragraph 1 of this Article, or its erroneous legal notice and failure to rectify with a notice, if the administrative litigation is initiated within 1 year from the next day of the date on which the petition decision is served, it is deemed as if the initiation of the administrative litigation falls within the statutory period. |
| Chapter IV Appeal and Re-Appeal |
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| Section I Appeal Procedure and Administration |
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| Article 57 | Whereas a servicemember believes that its rights and interests are impaired due to the unlawful or inappropriate administrative disposition or management measure imposed by the Authority other than the petition matter, he/she may file an appeal with the Appeal Review Authority.
Whereas a servicemember disagrees with the administrative discipline regarding restrictions, grounding, extra duty, standing at attention, or administrative disposition regarding promotion, or assignment, it may file an appeal pursuant to the provisions stipulated in the preceding paragraph.
Whereas the administrative discipline or disposition stipulated in the two preceding paragraphs is served after the loss of the servicemember status the then-servicemember may file an appeal pursuant to the provisions stipulated in Paragraph 1. |
| Article 58 | Within 30 days from the next day of the date on which administrative disposition or management measure is served, an appeal, by means of an oral or written statement, or other appropriate ways, shall be filed with the Appeal Review Authority. In case the administrative disposition or management measure is served during the navigation deployment, the 30-day period begins to run from the next day of the date on which the deployment berths at the domestic port.
In case the administrative disposition or management measure is rendered in a form other than writing, the original disposition or management measure agency may not deny the request by the person upon whom the disposition or measure is imposed to render the identical disposition in the form of writing. In the case that the person upon whom the disposition or measure is imposed disagrees with the disposition or measure instantly with a statement of premises, such agency shall grant its request, making the record of its premises for disagreement and handing over to the person concerned. |
| Article 59 | With respect to the appeal matter, the Appeal Review Authority shall, within 30 days from the next date on which it receives the appellate pleading, appropriately address the proceeding of the claims. The period may, if necessary, be extended for 10 days, and the appellant shall be notified. In case the appeal is still pending for process when the specified time limit expires, the appellant may file a re-appeal directly.
Whereas the conclusion of an appeal is in the form of writing a legal notice shall be given that if the appellant disagrees with the conclusion of the appeal, it may, within the 20-day period stipulated in Paragraph 2, Article 62, file re-appeal with the Protection Committee. In case the conclusion is in a form other than writing, the Appeal Review Authority may not deny the request for a written form of the conclusion instead if the appellant requests so.
The Ministry of National Defense and other agencies staffed with military and civilian personnel shall promulgate regulations vis-a-vis the establishment of the Appeal Review Authority, the delegation of power and responsibility, the procedure addressing the appeal, and other related matters. |
| Article 60 | An appeal will not be addressed if any of the following circumstances exist:
1. An appeal is filed after the expiration of the period stipulated by Paragraph 1, Article 85;
2. There are no concrete factual contents, or there is no real name, service unit that the appellant is affiliated with, place of residence, or any other ways of contact;
3. The identical subject matter that has been addressed in the form of a petition, appeal, or administrative litigation is nonetheless repeatedly initiated.
4. The agency that does not have the jurisdiction for appeal review yet receives the appeal of the identical subject matter filed by the appellant with several other agencies. |
| Article 61 | Whereas an appeal, which should be a petition for deliberation, is mistakenly filed, the Appeal Review Authority shall transfer to the original disposition agency to be addressed pursuant to the petition procedure and notify the person who mistakenly files such an appeal. |
| Section II Re-Appeal Procedure and Processing |
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| Article 62 | The appellant who disagrees with the conclusion of an appeal by the Appeal Review Authority may file a re-appeal with the Protection Committee pursuant to this Act.
In case the appellant disagrees with the conclusion of an appeal by the Appeal Review Authority it shall file a re-appeal with the Protection Committee within 20 days from the next day of the date on which the conclusion of the appeal is served. In case the conclusion of the appeal is served during the navigation deployment, the 20-day period begins to run from the next day of the date on which the deployment berths at the domestic port. |
| Article 63 | A re-appeal shall be submitted in the form of a re-appellate pleading bearing the following items:
1. The re-appellant’s name, date of birth, service unit, rank and position or occupation, domicile, residence or affiliated garrison, and National Identification Number or identification document and its number;
2. While there is a statutory agent or re-appeal agent, its name, date of birth, occupation, domicile, residence or office, and National Identification Number or identification document and its number;
3. The re-appeal claims;
4. The facts and premises for re-appeal;
5. The evidence;
6. The year, month, and day that the original administrative disposition or management measure and conclusion of appeal was served;
7. The year, month, and day of filing the re-appeal.
The re-appellate pleading shall bear the signature or seal-impression of the re-appellant and its statutory agent. In case a re-appeal agent is retained, the re-appellant shall sign or seal-impress its name. |
| Article 64 | The re-appeal decision shall be rendered within 3 months from the next day of the date on which the re-appellate pleading is received. The period may, if necessary, be extended for 10 days, and the re-appellant shall be notified of the extension. |
| Article 65 | The original disposition agency, original management agency, or the Appeal Review Authority shall, within 20 days from the date on which it receives the request vis-a-vis the re-appeal matter from the Protection Committee, provide the facts, reasons, and conclusion of the opinion as well as other related materials and respond to the Protection Committee.
In the event that the original disposition agency, original management agency, or the Appeal Review Authority fails to respond within the period stipulated in the preceding paragraph, the Protection Committee may render a decision directly without further ado. |
| Article 66 | In the event that a re-appeal against the administrative discipline, restrictions, grounding, extra duty, and standing at attention, stipulated in Paragraph 2, Article 57, is considered meritorious, and such administrative discipline has been executed, the Protection Committee shall render a decision that affirms the unlawfulness of such administrative discipline.
Article 51 of this Act shall apply mutatis mutandis when the Protection Committee renders such decision. |
| Article 67 | In the event that a re-appeal, which should be a petition for deliberation or appeal, is nonetheless mistakenly filed with the Protection Committee, the Protection Committee shall notify the original disposition agency or the Appeal Review Authority to address such a mistakenly filed re-appeal pursuant to the procedure for petition for deliberation or appeal, and notify the person mistakenly filing such a re-appeal. |
| Article 68 | Unless otherwise provided by this Section, the provisions of the petition for deliberation stipulated in this Act shall apply mutatis mutandis in the re-apply procedure. |
| Article 69 | Except for the case that the original administrative disposition or management measure is apparently a minor intervention, whereas the re-appellant who disagrees with the conclusion of the re-appeal may, within 1 month from the next day of the date on which the conclusion of the re-appeal is served, initiate administrative litigation in the Service Tribunal with the juridical boundaries where the original disposition agency or the original management measure agency seats. In the event that the re-appeal conclusion is served during the navigation deployment, the 1 month period begins to run from the next day of the date on which the deployment berths at the domestic port.
In the event that the original disposition agency or the original management measure agency fails to follow the provision of Article 68 that Article 49 applies mutatis mutandis and thus fails to render an administrative disposition or management measure, the re-appellant may, within 1 month from the next day after the expiration of the designated period, directly initiate administrative litigation in the Service Tribunal with the juridical boundaries where the original disposition agency or the original management measure agency seats.
In the event that the original disposition agency or the original management measure agency applies Article 49 mutatis mutandis pursuant to the provision of Article 68 and renders administrative disposition or management measure thereby yet the re-appellant nonetheless disagrees with the disposition or measure, he/she may directly initiate administrative litigation in the Service Tribunal with the juridical boundaries where the original disposition agency or the original management measure agency seats. The provision in Paragraph 1 applies mutatis mutandis vis-a-vis the period limit for initiation of an administrative litigation.
In the event that the re-appellant disagrees with the consolidation decision vis-avis re-appeal pursuant to Paragraph 3 of Article 9, the re-appellant may initiate consolidation administrative litigation in the Service Tribunal with the juridical boundaries where the Protection Committee rendering the consolidation adjudication decision seats.
The Service Tribunal may apply Small Claims Proceeding stipulated in the Administrative Litigation Act mutatis mutandis for adjudication of the litigation in the 4 preceding Paragraphs. |
| Chapter V The Service Tribunal of the High Military Court of Justice |
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| Article 70 | In the case that the petitioner or re-appellant disagrees with the petition decision or re-appeal decision rendered by the Protection Committee, the Service Tribunal shall have jurisdiction over administrative litigation. In case the disputes concerning rights or interests stipulated in Article 2 of this Act which are the claims for administrative litigation pursuant to the Administrative Litigation Act, an administrative litigation premised on such claims may be directly initiated in the Service Tribunal.
Unless otherwise stipulated by other provisions of this Act, the Court Organization Act shall apply mutatis mutandis when there is a dispute regarding the allocation of judicial power between the Service Tribunal and other civilian courts.
The Service Tribunal shall conduct the adjudication in a proper and speedy manner. The Ministry of National Defense shall enact and promulgate the regulation for the operation and procedure of the Service Tribunal. |
| Article 71 | The Service Tribunal shall be composed of three military judges sitting on the bench and the ruling for the adjudication shall be determined by a collegial panel of judges. In the case of a Small Claims Proceeding, it may be adjudicated by a single military judge.
In the bench trial stipulated in the preceding Paragraph, the Division Chief Judge shall serve as the Presiding Judge in a collegial panel. In case the office of the Division Chief Judge falls vacant or in the event that the Division Chief Judge is not available, the judge with the highest rank, or the most senior judge, shall act as the Presiding Judge. |
| Article 72 | In the event that the recusal of the military judge or other reasons impair the availability of military judges and a collegial panel for bench adjudication cannot be composed thereof, the District Court of Military Justice may assign military judges affiliated with other divisions for the purpose of the fulfillment of the function of a bench adjudication. |
| Article 73 | Except for the fees and expenses stipulated in Subparagraph 1 of Paragraph 1 of Article 98-6 in the Administrative Litigation Act which are collectible by the Service Tribunal, the other court costs shall not be collected by the Service Tribunal when it conducts the adjudication of an administrative litigation. |
| Article 74 | Any party who disagrees with the decisions or the rulings rendered by the Service Tribunal may, pursuant to the provisions of Part III or Part IV of the Administrative Litigation Act, file an appellate pleading against the decisions or motion to set aside court rulings in the High Administrative Court with the juridical boundaries where the Service Tribunal seats. |
| Chapter VI Miscellaneous Provisions |
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| Article 75 | In the event that the provisions of the Act cease to be in effect temporarily in whole or in part due to the mandate of the declaration of war, the declaration of martial law, or the national mobilization period given the critical circumstances, the portion of the provisions and the juridical area that are ceased to be in effect shall be promulgated and enforced by the Ministry of National Defense.
In the circumstances prescribed in the preceding paragraph, the statutory period stipulated in this Act ceases to run until the next day of the date on which this Act resumes to be applicable, the period may recommence therefrom. |
| Article 76 | In the event that the cadets in the military academies who are under the training of basic education and do not hold an active service status as prescribed in Subparagraph 4 of Paragraph 1 of Article 5 of the Act of Military Education yet initiate actions for relief due to the disagreement with the administrative disposition or management measure rendered by the Authority, the pertinent provisions of this Act shall apply mutatis mutandis. |
| Article 77 | Before the date that this Act takes effect, the matters that have been initiated for relief pursuant to other pertinent statutes or regulations but have not yet reached a final conclusion, except for those matters that are pending before the Administrative Court and adjudicated pursuant to the litigation procedure that they are already in process, shall be concluded pursuant to the procedure stipulated by this Act. Nonetheless, the effectiveness of the actions that have been in the process will not be affected. |
| Article 78 | The effective date of this Act shall be determined by the Executive Yuan. |