Are administrative appeals against the FSC completely pointless?

Legal General Legal Matters
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Fun fact. Well, not fun, but appears to be a fact nonetheless (don’t bother reading the rest of this post expecting to find something interesting – you’ve been warned).

The FSC publishes a list of the outcomes of administrative appeals on its website. There are 168 records on the English site at the moment. I skimmed through all 168, and as far as I can tell, almost every single one ends with:

The FSC Administrative Appeal Review Committee decided as follows: The administrative appeal will not be entertained.

The exception was a few of the earlier ones toward the end, which instead ended with:

The Administrative Appeal Review Committee dismiss the administrative appeal decision.

Which I suspect may just be a change in language. I couldn’t find a single one where the administrative appeal was accepted.

The Chinese site has 209 records, which are far more detailed than the brief English summaries. I didn’t go through all of those, because I’m not completely mental, but I looked at a few and they appear to follow a similar pattern (machine translated):

According to Article 1, Paragraph 1 of the Petition Law, this article stipulates: “If the people believe that the administrative sanctions imposed by the central or local authorities are illegal or inappropriate and have harmed their rights or interests, they may file a petition in accordance with this law.” Paragraph 1 of Article 3 stipulates: “Administrative sanctions as mentioned in this Law refer to unilateral administrative actions that have direct legal effects on the outside world, such as decisions made by central or local authorities on specific matters under public law or other public power measures.” If a petition is filed for non-administrative sanctions or other matters that are not within the scope of petition relief according to law, the decision shall be made as not to be accepted in accordance with Article 77, Paragraph 8 of the Petition Act.

The common theme seems to be:

  • Using Articles 1 and 3 of the Administrative Appeal Act to claim that the act only refers to administrative actions that have direct legal effects on the outside world, and so non-administrative actions and other stuff aren’t covered (this seems to ignore Article 2 of the same act, which specifically stipulates inaction as also being appealable, and a few of the records specifically mentioned the appellant being dissatisfied with the inaction of bureaus of the FSC).
  • Using Article 77 Paragraph 8 of the same act (“An administrative appeal is filed against non-administrative action or other cases which are beyond the scope of administrative appeal remediless according to other Acts,” in a list of situations where appeals won’t be entertained) for the same reason.
  • Claiming under Articles 5, 13, and 14 of the Financial Consumer Protection Act that the FSC isn’t an administrative agency but a legal entity that isn’t entrusted to exercise public power (I don’t see where these articles say that), so the Administrative Appeal Act doesn’t apply at all.
  • Some more stuff about, like, it’s just our opinion man. What we wrote is just a simple factual statement and explanation of reasons, and it doesn’t affect your rights or the outside world. We’re not an administrative agency!

What a load of BS. Looks like we’ve got our work cut out for us, @Mataiou! We might need to appeal to the Executive Yuan to make the FSC do their job of making the Banking Bureau do their job. :unamused:

When I called and wrote to the FSC earlier in the week, they didn’t seem to want to tell me about the appeal process and suggested several times I just submit another complaint through their website.

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Look who’s made it onto the FSC’s list of futility. Our very own @Mataiou!

English translation, if you can call it that:

FSC Administrative Appeal Decision (Case No. 11200040), 2024-01-30
The administrative appellant, in connection with the filing of a complaint, refused to accept the email (Ref: yin ju piao zi No. 1120224915) issued by the FSC Banking Bureau on 30 August 2023, and therefore filed an administrative appeal with the FSC. The FSC Administrative Appeal Review Committee decided as follows: The administrative appeal will not be entertained.

The slightly more detailed Chinese version:

上列訴願人因陳情事件，不服本會銀行局112年8月30日銀局(票)字第1120224915號電子郵件等，提起訴願，本會決定如下：

發布單位：金融監督管理委員會
金融監督管理委員會訴願決定書（案號：11200040）
金管訴字第11301903704號

上列訴願人因陳情事件，不服本會銀行局112年8月30日銀局(票)字第1120224915號電子郵件等，提起訴願，本會決定如下：

主 文
訴願不受理。
理 由
一、按訴願法第1條第1項本文規定：「人民對於中央或地方機關之行政處分，認為違法或不當，致損害其權利或利益者，得依本法提起訴願」。第3條第1項規定：「本法所稱行政處分，係指中央或地方機關就公法上具體事件所為之決定或其他公權力措施而對外直接發生法律效果之單方行政行為」。復按「行政機關所為單純的事實敘述或理由說明，並非對人民之請求有所准駁，既不因該項敘述或說明而生法律上之效果，非訴願法上之行政處分，人民對之提起訴願，自非法之所許」，最高行政法院107年度判字第157號判決可資參照。對於非行政處分或其他依法不屬訴願救濟範圍內之事項提起訴願者，依訴願法第77條第8款規定，應為不受理之決定。
二、緣訴願人以112年8月7日電子郵件，向本會銀行局陳情○○商業銀行股份有限公司（下稱○○銀行）應提供外國人開戶業務等事項。經本會銀行局以112年8月30日銀局(票)字第1120224915號電子郵件回復訴願人略以，持有晶片居留證之外國成年人可開立數位存款帳戶，各銀行之實際辦理情形則涉及內部業務規劃、作業系統及風險考量，目前臺灣3家純網路銀行僅提供年滿18歲之本國國籍自然人開戶。訴願人對上開112年8月30日電子郵件內容不服，爰提起訴願，嗣於112年10月18日及同年11月21日分別補正訴願書到會。
三、查上開112年8月30日電子郵件，係本會銀行局對訴願人所為陳情之回復，性質核屬單純之事實敘述或理由說明，並非對訴願人權益有所影響，對外直接發生法律效果之單方行政行為，自非訴願法第1條所稱之行政處分。訴願人對之提起訴願，揆諸首揭規定，程序顯有不合，應不受理。
四、至訴願人援引金融消費者保護法第7條等規定，主張本會應對○○銀行進行處理一節。查銀行（包括一般商業銀行及純網路銀行）受理開立數位存款帳戶，應依「銀行受理客戶以網路方式開立數位存款帳戶作業範本」辦理，開戶對象包括個人戶及非個人戶，個人戶係指年滿7歲以上並領有國民身分證之自然人及成年外國自然人。惟實務上各銀行是否受理外國人開戶，或是否與客戶建立業務關係，係屬各銀行自主經營之範疇，併予敘明。
據上論結，本件訴願為不合法，爰依訴願法第77條第8款決定如主文。

Machine translation:

Subject: Decision on Rejection of Appeal

Main Text:
The appeal is not accepted.

Reasons:

According to Article 1, Paragraph 1 of the Appeal Act: “Citizens who believe that the administrative disposition of central or local authorities is illegal or improper, causing damage to their rights or interests, may appeal under this Act.” Article 3, Paragraph 1 further defines administrative disposition as “decisions or other exercises of public power by central or local authorities on specific events in public law that directly produce legal effects.” Referring to the judgment of the Supreme Administrative Court in Decision No. 107, Judgment No. 157, “Administrative actions that consist merely of factual descriptions or reasons do not reject the requests of the people and do not have legal effects. Such actions are not considered administrative dispositions under the Appeal Act, and appeals against them are not legally permissible.” Appeals concerning matters that are not administrative dispositions or fall outside the scope of appeal remedies under the law shall be rejected in accordance with Article 77, Paragraph 8 of the Appeal Act.

The appellant submitted a petition to the Banking Bureau of this commission via email on August 7, 112, regarding matters such as the opening of accounts for foreign nationals by ○○ Commercial Bank Co., Ltd. (hereinafter referred to as ○○ Bank). The Banking Bureau replied to the appellant via email on August 30, 112 (Ref. No. 1120224915), stating that holders of chip-based resident permits for foreign adults can open digital deposit accounts. However, the actual implementation by each bank involves internal business planning, operating systems, and risk considerations. Currently, only three online banks in Taiwan provide account opening services for natural persons over the age of 18 who are citizens of the country. The appellant disagreed with the content of the email dated August 30, 112, and subsequently filed an appeal, amending the appeal on October 18 and November 21, 112.

Upon reviewing the email dated August 30, 112, it is a simple factual description or explanation by the Banking Bureau of this commission in response to the appellant’s petition. It does not affect the appellant’s rights and is not a unilateral administrative action that directly produces legal effects. Therefore, it does not fall under the definition of administrative disposition in Article 1 of the Appeal Act. The appellant’s appeal against it is procedurally flawed and should be rejected.

As for the appellant’s invocation of Article 7 of the Financial Consumer Protection Act and other provisions, claiming that this commission should handle matters related to ○○ Bank. The opening of digital deposit accounts by banks (including traditional commercial banks and online banks) should follow the “Operation Template for Banks Accepting Customers to Open Digital Deposit Accounts via the Internet.” The account holders include individual and non-individual accounts, where individual accounts refer to natural persons aged 7 and above with national identity cards and adult foreign natural persons. However, whether banks accept foreign nationals to open accounts or establish business relationships with customers is within the scope of each bank’s independent operation.

Based on the above reasoning, the appeal in this case is deemed legally invalid. Therefore, in accordance with Article 77, Paragraph 8 of the Appeal Act, the decision is made as stated in the subject.

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I lost a battle, shall not lose the war!

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What the FSC needs to be asked

1520135953334

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Certified Taiwan lawyer here. In my experience, administrative agencies tend to be pretty reserved about granting administrative remedies. There are some liberal judges presiding over the Administrative Courts but generally speaking administrative litigation is an uphill battle.

I don’t know the full extent of your case or what FSC stated in their email, but from what I gather, your communication did not prompt a response from FSC that would amount to an “administrative action” (translated as “administrative sanctions” in your post) under Article 1 of the Administrative Appeal Act and therefore FSC’s email may not be subject to administrative appeal. Because Article 7 of the Financial Consumer Protection Act does not provide for FSC’s duty to act upon an application, their response does not amount to an “inaction” under Article 2 of the Administrative Appeal Act. You can bring a case to the Administrative Court but I suspect the chances are slim. I think your best bet would be to go after the bank that rejected you.

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That right there is the attitude that builds a nation. Good for you!

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If one goes after the bank that rejected, their defence will be simply that the FSC has ruled that it is allowed and then bring out the mountain of letters where the FSC sided with them. Not a lawyer but the head of the snake is the FSC and it needs to be brought to court. I also don’t think we would win but that’s not even the point.

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Welcome to Forumosa and thank you for this very helpful post. Many legal issues come up here and it would be great if you could point posters in the right direction from time to time.

Have you ever seen an administrative agency grant an administrative appeal of an appealable act like an administrative disposition (xíngzhèng chǔfèn)? Just curious. I’m sure it is possible to find one since there are so many, but have personally never seen one and I have reviewed hundreds of them.

I strongly agree with your view that administrative litigation is an uphill battle. But (very) infrequently plaintiffs/complainants do win although it is more common where the defendant is a local government agency rather than a central government one. For example, I believe that the Taipei restaurant Out of India (owned a by a foreign investor) won against Taipei City.

If so, this exactly the same as what we see in the US. Only the most sophisticated and wealthy plaintiffs can take on the federal or state government and win. And it is very rare even for these plaintiffs. People win cases against local governments fairly often. One thing that makes it easier in the US is that local government will often decide to settle a case. In my experience, Taiwanese agencies never ever settle no matter what. This is a big problem.

I also agree about trying to go after the bank.

@Mataiou sorry, I forgot. Did you bring a complaint for discrimination by the bank to the NIA/ Ministry of the Interior under the Immigration Act? If so, can you remind us what happened. It might be useful to know whether that proceeding resulted in an appealable administrative act that could have been taken to the administrative courts. Bring an action for this one seems really tough. Your initial letter was a petition. The FSC dealt with it by law. Their response was not an appealable administrative act. Pretty sure the administrative court will uphold this on for public policy reasons (adminstrative and judicial efficiency). You never know though.

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I don’t think he did. He complained to the FSC, as described in the posts below (there might be others - I’m not sure he posted everything, or that I found everything).

Letter from the FOI saying it’s an FSC issue, and complaint to the FSC:

Appeal to the FSC (also discussed in subsequent posts):

I did though, against Richart/Taishin/JKO.

My response from the MOI:

The response to my subsequent appeal:

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I don’t get this - why does this not count as “inaction” if they don’t enforce existing laws? Would you mind explaining that reasoning a bit more?

Thanks for your insights, by the way. :slight_smile:

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Yeah, as @Andrew said, didn’t go to MOI, but tried any avenue with FOI/FSC.

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Thanks. Sadly I can’t think of an example off the top of my head and administrative appeals are somewhat difficult to research because they do not come up in legal databases (only judicial opinions do). You have to go to each agency’s website and parse though their posts to find out (like you and OP did and I applaud to that!)

I agree it’s easier for plaintiffs to win against local government versus central. Central government is more prestigious and cautious and hires better qualified in-house counsels which makes them less vulnerable to lawsuits. Taiwanese government agents are deterred from settling because they are concerned that would lead to criminal liabilities.

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Inaction is interpreted very narrowly by the courts and therefore very few cases actually succeed on this basis. It is defined as the agency’s failure to act timely in response to an application submitted by the people according to the law, provided that, the law must provide very specifically for the agency’s duty to act. Failure to enforce existing laws may be a negligence on the agency’s part but legally speaking that does not necessarily give rise to a cause of action.

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I would just add that other jurisdictions do things similarly.

For example, the US courts generally do not permit liabilty claims against governments for failure to enforce the law involving discretionary government acts. I remember being shocked to learn this in a case that involved multiple deaths in a factory after the state failed to enforce its own fire safety laws. Incredibly the state did not only not do fire inspections which would have revealed highly unsafe conditions and blocked exits, but the state legislature also failed to fund enough inspectors.

The court said no compensation because if states could be liable in these circumstances they would be reluctant to pass safety laws because they would be worried about possible liability for failing to enforce the law.

I’m not 100% sure that is still entrirely good law, but this reasoning is still preserved in what is known as the public duty doctrine. This is a very complex area of law.

MRSC - A Duty to All is a Duty to No One: Understanding the Public Duty Doctrine.

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Just curious, what did the FSC rule specifically? Could you share one of those letters? I wonder if they have said anything that could incur liability.

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FYI I found a case where the Ministry of Education granted administrative appeal and overturned a university’s decision to expel a PhD student with mental and physical disabilities who failed to complete PhD program within the time required by law. The university’s position is that the law does not provide for a longer completion time for disabled people. The MOE, however, decided that expulsion violates the principle of proportionality.

See full decision here. Not sure if MOE has an English version available though.

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I should add that the university’s decision was appealed to the MOE, which is the supervisory agency for all levels of schools. That is quite different from FSC reviewing its own letter/email/statement.

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Technically you can appeal to the executive yuan as they FSC depends from it

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Yes you can!

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I tried that, but Executive yuan always rejecting as the document I was appealing for was not an administrative decision.

But it is possible as per the administrative appeal act.

It is just so hard to get an actual administrative decision from FSC to you. Or administrative inaction.

@heysandra any insight on how to get FSC to make an administrative decision? Like how to actually officially report FSC regulated entities for not compliance? It’s not the useless write to FSC tool, it’s not the administrative appeal form, what it is?