Proposals for Amendment | Comments on the Amendment to Article 273 of the Administrative Litigation Act Regarding Retrial Provisions
Last edited: 2026-11-03
The Judicial Reform Foundation (hereinafter referred to as the "JRF") hereby submits the following comments regarding the amendment to Article 273 of the Administrative Litigation Act concerning retrial provisions:
I. To promote the discovery of the truth and protect the rights of the people, the provision of Article 273, Paragraph 1, Subparagraph 13 of the Administrative Litigation Act—concerning a party applying for a retrial based on the discovery of new evidence—should not be limited to circumstances where the evidence "existed prior to the conclusion of the litigation proceedings." Therefore, amendment is necessary:
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Article 273, Paragraph 1, Subparagraph 13 of the Administrative Litigation Act provides: "A final and conclusive judgment may be challenged by a retrial action under any of the following circumstances...: 13. A party has discovered undiscovered material evidence or is able to make use of such evidence. However, this is limited to cases where, had such evidence been examined, a more favorable judgment could have been rendered for the party." According to current judicial practice, this subparagraph is interpreted as being limited to evidence that "existed prior to the conclusion of the prior litigation proceedings and was discovered only after the judgment became final and conclusive.[1]" Therefore, if such evidence came into existence after the judgment, it cannot be deemed undiscovered material evidence, and thus can hardly serve as a ground for a retrial.
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Based on the protection of people's rights and the requirement to discover the truth, the legislature has made value judgments in other laws prioritizing "case-by-case justice over legal stability." The reasons for the 2015 amendment to Article 420 of the Code of Criminal Procedure pointed out this rationale[2] and provided a clear definition of "new facts or new evidence." Furthermore, in the 2020 amendment to Article 128 of the Administrative Procedure Act, the legislature reiterated the same intent[3] . Considering that the administrative litigation system shoulders the important public-interest mission of correcting illegal administrative acts, the interpretation and application of Article 273, Paragraph 1, Subparagraph 13 of the Administrative Litigation Act should not be restricted by current judicial practice—which imposes limitations not provided for by law. Instead, based on the same legal principles, "facts or evidence that came into existence or were established only after the judgment became final and conclusive" should be incorporated into the requirements for applying for a retrial to protect people's rights.
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Moreover, the aforementioned provision only refers to "material evidence," leaving it questionable whether witnesses may be examined by the retrial court. There is also a judicial decision in practice[4] holding that: "... 'Material evidence' as referred to in Article 273, Paragraph 1, Subparagraph 13 of the Administrative Litigation Act does not extend to the testimony of witnesses. Therefore, the retrial plaintiff's arguments and application to examine witnesses in this regard obviously do not fall under the material evidence stipulated in Article 273, Paragraph 1, Subparagraph 13 of the Administrative Litigation Act." However, neither the Administrative Procedure Act nor the Code of Criminal Procedure contains such restrictions. To eliminate controversies, the wording should also be appropriately amended.
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In summary, the JRF suggests the following amendments to the provisions of Article 273 of the Administrative Litigation Act:
JRF Proposed Provisions Current Provisions Article 273 - A final and conclusive judgment may be challenged by a retrial action under any of the following circumstances. However, this shall not apply if the party has already asserted the ground in an appeal and the judgment has held it to be groundless, or if the party knew of the ground and failed to assert it in an appeal:
1. The application of laws and regulations is manifestly erroneous.
2. The reasons for the judgment and the main text of the judgment are manifestly contradictory.
3. The organization of the court rendering the judgment is unlawful.
4. A judge who should have recused himself or herself by law or ruling participated in the adjudication.
5. A party was not lawfully represented or agented in the litigation. However, this shall not apply if the party knew that the authority of litigation representation was defective and failed to dispute it before the conclusion of oral arguments in the litigation.
6. A party knew the address where service should be made on the opposing party, but designated it as whereabouts unknown and litigated accordingly. However, this shall not apply if the opposing party has acknowledged the litigation proceedings.
7. A judge participating in the adjudication has committed a proven criminal offense in violation of official duties regarding the litigation, or has received a disciplinary sanction for a breach of official duties regarding the litigation, sufficient to affect the original judgment.
8. The agent, representative, or administrator of a party, or the opposing party or its agent, representative, or administrator, has committed a punishable criminal act regarding the litigation, which affected the judgment.
9. The material evidence upon which the judgment was based is forged or altered.
10. A witness, expert witness, or interpreter made a false statement, appraisal, or interpretation upon which the judgment was based.
11. The civil or criminal judgment and other rulings or administrative dispositions upon which the judgment was based have been altered by a subsequent final and conclusive judgment or administrative disposition.
12. A party has discovered that a final and conclusive judgment, settlement, or mediation already existed previously regarding the same subject matter of litigation, or is able to use such judgment, settlement, or mediation.
13. A party has discovered undiscovered material evidence or is able to use such material evidence. But this is limited to cases where, had such evidence been examined, a more favorable judgment could have been rendered.
14. The original judgment omitted the examination of important material evidence sufficient to affect the judgment. - Where the legal norm applied in a final and conclusive judgment has been declared unconstitutional by a judgment of the Constitutional Court, or where the views expressed in the application of the legal norm differ from a judgment of the Constitutional Court unifying legal interpretations, the petitioner may also bring a retrial action.
- The proof of the circumstances under items 7 through 10 of Paragraph 1 shall be limited to cases where a final and conclusive judgment has been rendered, or where criminal or disciplinary proceedings cannot be commenced or continued, or where a judgment of dismissal or non-prosecution (or exemption from prosecution) is rendered for reasons other than insufficient evidence, before a retrial action may be brought.
- Evidence under Paragraph 1, Subparagraph 13 refers to evidence that existed or was established before the finality of the judgment but was not investigated and examined in time, as well as evidence that came into existence or was established after the finality of the judgment.
- In the circumstances of the preceding paragraph, a retrial action may be brought only if the party, without any fault attributable to themselves, was unable to submit the evidence before the conclusion of oral arguments in the litigation.
Article 273 - A final and conclusive judgment may be challenged by a retrial action under any of the following circumstances. However, this shall not apply if the party has already asserted the ground in an appeal and the judgment has held it to be groundless, or if the party knew of the ground and failed to assert it in an appeal:
1. The application of laws and regulations is manifestly erroneous.
2. The reasons for the judgment and the main text of the judgment are manifestly contradictory.
3. The organization of the court rendering the judgment is unlawful.
4. A judge who should have recused himself or herself by law or ruling participated in the adjudication.
5. A party was not lawfully represented or agented in the litigation. However, this shall not apply if the party knew that the authority of litigation representation was defective and failed to dispute it before the conclusion of oral arguments in the litigation.
6. A party knew the address where service should be made on the opposing party, but designated it as whereabouts unknown and litigated accordingly. However, this shall not apply if the opposing party has acknowledged the litigation proceedings.
7. A judge participating in the adjudication has committed a proven criminal offense in violation of official duties regarding the litigation, or has received a disciplinary sanction for a breach of official duties regarding the litigation, sufficient to affect the original judgment.
8. The agent, representative, or administrator of a party, or the opposing party or its agent, representative, or administrator, has committed a punishable criminal act regarding the litigation, which affected the judgment.
9. The material evidence upon which the judgment was based is forged or altered.
10. A witness, expert witness, or interpreter made a false statement, appraisal, or interpretation upon which the judgment was based.
11. The civil or criminal judgment and other rulings or administrative dispositions upon which the judgment was based have been altered by a subsequent final and conclusive judgment or administrative disposition.
12. A party has discovered that a final and conclusive judgment, settlement, or mediation already existed previously regarding the same subject matter of litigation, or is able to use such judgment, settlement, or mediation.
13. A party has discovered undiscovered material evidence or is able to use such material evidence. But this is limited to cases where, had such evidence been examined, a more favorable judgment could have been rendered.
14. The original judgment omitted the examination of important material evidence sufficient to affect the judgment. - Where the legal norm applied in a final and conclusive judgment has been declared unconstitutional by a judgment of the Constitutional Court, or where the views expressed in the application of the legal norm differ from a judgment of the Constitutional Court unifying legal interpretations, the petitioner may also bring a retrial action.
- The proof of the circumstances under items 7 through 10 of Paragraph 1 shall be limited to cases where a final and conclusive judgment has been rendered, or where criminal or disciplinary proceedings cannot be commenced or continued, or where a judgment of dismissal or non-prosecution (or exemption from prosecution) is rendered for reasons other than insufficient evidence, before a retrial action may be brought.
- In the circumstances of Paragraph 1, Subparagraph 13, a retrial action may be brought only if the party, without any fault attributable to themselves, was unable to submit the evidence before the conclusion of oral arguments in the litigation.
- A final and conclusive judgment may be challenged by a retrial action under any of the following circumstances. However, this shall not apply if the party has already asserted the ground in an appeal and the judgment has held it to be groundless, or if the party knew of the ground and failed to assert it in an appeal:
II. However, Your Hall's [the High Administrative Court's / Judicial Yuan's] explanatory opinions given on May 25 at the 5th Session of the 10th Legislative Yuan adopted a reserved view regarding the aforementioned proposed amendment, with the reasons summarized as follows:
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According to current practical views[5] , retrials and administrative procedure reopening are in a "mutually exclusive relationship." That is to say: an administrative disposition upheld by a final and conclusive judgment on the merits rendered by an administrative court is not subject to applications for reopening administrative procedures under the aforementioned provisions, because relief can be sought through retrial procedures. However, if relief cannot be obtained through retrial procedures, by interpretation, applications to reopen administrative procedures should be permitted. Furthermore, considering that Article 128 of the current Administrative Procedure Act has expanded the scope of "new evidence," for circumstances where a party cannot initiate a retrial, they may still apply to the administrative authority for procedural reopening; hence, there is no loophole in the protection of rights.
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Conversely, if Article 273 of the Administrative Litigation Act is amended in accordance with the aforementioned opinion, in cases where a party discovers "evidence that came into existence or was established after the judgment became final and conclusive," according to judicial practice, the party may not apply to the administrative authority for procedural reopening, but can only petition the court for a retrial. Consequently, this is not necessarily favorable to the protection of a party's rights and, in effect, hollows out the provisions of Article 128, Paragraph 3 of the Administrative Procedure Act. From the perspective of the people, most hope that administrative authorities will reopen procedures and render decisions on the merits; in terms of realizing rights, this is more prompt and effective than a judgment in favor by a retrial court.
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Moreover, if people are permitted to apply for the reopening of administrative procedures before an administrative authority while simultaneously petitioning the court for a retrial regarding the same event, it would raise concerns about duplicated procedures and redundant structures.
III. However, the JRF believes that Your Hall's aforesaid reserved opinion—premised on the view of judicial practice that retrials and procedural reopening are in a "mutually exclusive relationship"—warrants further discussion, as elaborated below:
- Most academic theories consider retrials and procedural reopening to serve a "complementary relationship"; using practical views as the basis for legislative policy seems inappropriate:
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(1) The aforementioned practical view adopting a "mutually exclusive relationship" holds that the phrase "after the statutory period for remedy has elapsed" in Article 128 of the Administrative Procedure Act only encompasses circumstances where "no legal remedy has been initiated" and "ordinary legal remedies have been pursued but a retrial cannot be initiated." Consequently, by a-contrario interpretation, it deems that administrative dispositions finalized by a judgment on the merits from an administrative court cannot be subject to an application for procedural reopening.
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(2) However, the majority of academic opinions consider the aforesaid judicial practice to be inappropriate[6] . Scholar Lin Ming-hsin (林明昕) argues that the phrase "after the statutory period for remedy has elapsed" should be an intentional or unintentional omission by the legislator—much like how "after the statutory period for remedy has elapsed" in Article 117 of the Administrative Procedure Act is not limited to its literal meaning, but includes the authority revoking a disposition "prior" to the expiration of the remedy period. Therefore, based on a systematic interpretation, dispositions finalized by judgments on the merits should at least be analogously applied to Article 128 of the Administrative Procedure Act[7] . Scholar Li Chien-liang (李建良) points out that "after the statutory period for remedy has elapsed" is an illustrative provision of a disposition possessing formal legal validity, and thus naturally includes dispositions finalized through administrative litigation resulting in a dismissal judgment[8] . Scholar Chen Min (陳敏) also holds that administrative dispositions finalized by court judgments should likewise be eligible to apply for the reopening of administrative procedures [9].
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(3) According to a teleological interpretation, regarding the revocation and abolition of administrative dispositions, current law establishes two concurrent systems based on differing objectives: First, abolition resulting from legal remedy procedures, established to uphold the protection of people's rights (namely, the current appeal and administrative litigation systems); Second, abolition not arising from legal remedy procedures, which is self-reflection undertaken by administrative authorities based on the principle of lawful administration (namely, Articles 117 onwards, 128, and 129 of the Administrative Procedure Act) [10]. Since their objectives differ, retrials and procedural reopening should indeed be concurrent systems, rather than excluding people's right to petition for a retrial to seek impartial and objective administrative court oversight over the legality of administrative acts on the grounds that people can apply to administrative authorities for procedural reopening. Otherwise, this amounts to a denial of the administrative remedy system.
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(4) Furthermore, from a practical standpoint, because administrative authorities themselves are unfamiliar with the provisions concerning procedural reopening under the Administrative Procedure Act, they are rarely applied in practice. This further proves that as a judicial organ, the administrative court makes it truly necessary for people to have the right to apply for a retrial regarding the same scope and grounds.
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(1) Appropriate amendments to the provisions on retrials are intended to establish a loophole-free pathway for legal remedies. As stated above, since their purpose differs from procedural reopening, there is no concern of institutional redundancy.
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(2) If the provisions on retrials in the Administrative Litigation Act are amended in accordance with the aforementioned opinion, people should be permitted to "simultaneously" initiate a retrial and procedural reopening. Under such circumstances, the administrative court may temporarily suspend the litigation proceedings. If the administrative authority deems the application illegal, the retrial action may then be resumed. If the authority deems the application legal, because a second decision will subsequently be rendered, the court may make an appropriate judgment by referring to the provisions of Article 107 of the Administrative Litigation Act. If the people are dissatisfied with the second decision, they may initiate administrative litigation once again.
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(3) If people "successively" initiate a retrial and procedural reopening, even if the court has already rendered a retrial judgment having the effect of a final and conclusive judgment, such final and conclusive judgment does not actually restrict the respondent authority's power to revoke or issue a favorable disposition. Therefore, there should be no question of the authority's disposition violating res judicata or creating a contradiction in the legal order. This is because "a final and conclusive judgment in a revocation action imposes an obligation on the administrative authority not to re-enact the revoked disposition; a final and conclusive judgment in a disposition-compelling action imposes an obligation to render the disposition ordered by the judgment.[11]"
IV. The JRF's comments on the amendment to Article 273 of the Administrative Litigation Act regarding retrial provisions are as stated above. Your kind consideration is respectfully requested.
Footnotes
[1] See Administrative Ruling No. 17 of the Supreme Administrative Court (1955); Administrative Ruling No. 40 of the Supreme Administrative Court (1959). Administrative Judgment No. 891 of the Supreme Administrative Court (2020) shares the same view.
[2] Excerpt from the legislative reasons: "4. In view of the fact that current practice is constrained by Supreme Court Precedent No. T'e-K'ang-Tzu 21 (1946), Precedent No. K'ang-Tzu 8 (1939); and Precedent No. T'ai-K'ang-Tzu 104 (1961), Precedent No. T'ai-K'ang-Tzu 72 (1960), Precedent No. T'ai-K'ang-Tzu 1 (1952), Precedent No. T'ai-K'ang-Tzu 2 (1951), and Precedent No. K'ang-Tzu 113 (1943), which created the requirements of 'novelty' and 'certainty,' interpreting the provision of this subparagraph as 'evidence that already existed at the time of the original fact-finding court's judgment, but was not discovered by the court before the judgment and thus failed to be investigated and examined, and was discovered only thereafter,' and requiring that the retrial court must attain a definite mental conviction—free from reasonable doubt—sufficient to shake the original final judgment and render a judgment favorable to the convicted person. The restrictions thus added are not only unreasonable and unnecessary, but also impose restrictions not provided by law upon the fundamental right of the people—guaranteed by the Constitution—to pursue the retrial pathway to overturn erroneous conviction judgments, thereby violating the principle of legal reservation. 5. Since the purpose of the retrial system is to discover the truth and pursue concrete fairness and justice so as to reconcile legal stability with the discovery of the truth, legal stability must not be favored to the exclusion of the pursuit of justice. The novelty and certainty requirements created by the aforementioned precedents prevent victims of erroneous conviction judgments from applying for a retrial based on new evidence that did not exist or was not discovered at the time of the fact-finding court's judgment, which clearly imposes restrictions not provided by law upon the right of persons wrongly convicted to obtain relief through retrial procedures. 6. Therefore, Paragraph 1, Subparagraph 6 of the original article is amended, and a third paragraph is added concerning the definition of new facts and new evidence, referring to facts and evidence that existed or were established before the finality of the judgment but were not investigated and examined in time, as well as facts and evidence that came into existence or were established after the finality of the judgment, which—when assessed individually or comprehensively combined with prior evidence—are sufficient to show that the person convicted of a crime should be acquitted, exempted from prosecution, exempted from punishment, or given a lighter sentence than the crime recognized in the original judgment."
[3] Excerpt from the legislative reasons: "2. Current judicial practice applying the provisions of Article 128 of the Administrative Procedure Act (hereinafter referred to as the Disputed Provision) restricts 'new evidence' in the text of the law to 'evidence that already existed at the time the administrative disposition was made, but was unexamined,' which has evidently added limitations not prescribed by law and does not accord with the legislative purpose of the Act. 3. According to the General Explanation of the 'Draft Administrative Procedure Act' submitted by the Executive Yuan to the Legislative Yuan for deliberation in 1995, as well as subsequent legislative processes, the legislature never discussed or disputed whether 'new evidence' in Subparagraph 2 of the Disputed Provision must be restricted to circumstances where it 'already existed at the time the administrative disposition was made, but was unexamined,' as evidenced by relevant documents. However, in applying the Disputed Provision, current practice mostly adopts the views expounded in Administrative Court Precedent No. 736 (1980)—rendered by the former administrative court regarding grounds for retrial in administrative litigation—and narrows 'discovering new evidence' in the Disputed Provision to the scope of 'already existing at the time the administrative disposition was made, but unexamined,' excluding 'evidence discovered only after the administrative disposition was made.' This clearly adds limitations not provided in the statutory text. 4. Given that the legislative purpose of the Disputed Provision is to strengthen the protection of people's rights and ensure the legality of administration, any evidence sufficient to overturn or shake the factual foundation upon which the original administrative disposition was based should fall within the scope of application of 'discovering new evidence' under the Disputed Provision. Naturally, this should include 'evidence that came into existence or was established only after the administrative disposition was made.' Only this complies with the legislative purpose described above. Nevertheless, the limitations added in practice that are not found in the statutory text do not help strengthen the protection of people's rights or ensure the legality and legitimacy of administration, and they lead to numerous cases failing to obtain relief from the courts, running the risk of violating the principle of legal reservation and the constitutional protection of the right of litigation. Therefore, to implement the original legislative intent, the scope of 'new evidence' in the Disputed Provision is explicitly stated to eliminate controversies and ensure the realization of people's rights."
[4] See Taichung High Administrative Court Judgment No. 18 (2016).
[5] See Supreme Administrative Court Judgment No. 56 (2019); Supreme Administrative Court Judgment No. 597 (2018).
[6] Scholar Chan Chen-jung (詹鎮榮), after reviewing domestic literature, pointed out: "Domestic scholars in our country generally adopt a broader understanding regarding the concept of 'after the statutory period for remedy of an administrative disposition has elapsed' stipulated in Article 128 of the Administrative Procedure Act. To analyze, the procedural subject matter eligible for the reopening of administrative procedures is not limited to administrative dispositions that have acquired formal legal validity merely because an appeal or administrative litigation was not initiated within the statutory remedy period; it also includes administrative dispositions that have been subjected to administrative remedies and have generated indisputability due to a final and conclusive court judgment." Chan Chen-jung, "The Procedural Subject Matter of Reopening Administrative Procedures—A Comparison between Domestic and German Legal Systems," *Soochow Law Review*, Vol. 23, No. 1, 2010, pp. 116-117.
[7] Lin Ming-hsin, "On the Retrial of Appeals and the Revocation of Administrative Dispositions: A Legal Issue Between Administrative Remedy Law and Administrative Procedure Act," in: *Pioneering Lines of Public Law: Construction of Theory, Practice, and System*, Angle Publishing, 2006, pp. 307-312.
[8] Tsai Mao-t'ai, Li Chien-liang, Lin Ming-chiang, and Chou Chih-hung, *Practical Administrative Procedure Act*, 3rd ed., New Perspectives Publishing, 2006, p. 317.
[9] Chen Min, *General Principles of Administrative Law*, 7th ed., New Perspectives Publishing, September 2011, p. 483.
[10] Lin Ming-hsin, "A Missing Provision: On the Revocation and Abolition of Administrative Dispositions with Third-Party Effects," *National Taiwan University Law Journal*, Vol. 44, No. 2, pp. 364-366.
[11] Chen Min, cited in note 9, p. 483.
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