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NO LITIGATION AGAINST A DECISION OVERTURNING AN ADMINISTRATIVE DISPOSITION
Article 4 Paragraph 3 of the Code of Adminis-trative Procedure provides that if an interested party other than the appellant believes that the decision in an administrative appeal harms his rights or legal interests, he may bring a suit for revocation of the decision in the High Adminis-trative Court. Based on this provision, the Court had always taken the view that where a party to an administrative appeal or an interested party, does not accept a decision of the appellate agency to revoke the original administrative disposition, such a party may file an administra-tive suit against the appellate agency. However, in a number of recent cases, the Taipei High Administrative Court has taken a different view.
In a recent judgment in a trademark invalidation case, the Taipei High Administrative Court, cit-ing the precedent of a 1938 judgment of the then Administrative Court, stated that the subject matter of an administrative suit is an administra-tive disposition by a government agency. Ac-cordingly, if the original disposition no longer exists, then the plaintiff's action should be dis-missed on the grounds of non-existent subject matter. Thus a precondition for filing a suit for revocation with the High Administrative Court is the existence of an administrative disposition. If the administrative disposition in question has ceased to exist, having been revoked by the de-cision of an administrative appeal, it follows that no administrative suit may be instituted. A suit filed under such circumstances must be dis-missed without hearing oral arguments, in ac-cordance with Article 107 Paragraph 3 of the Code of Administrative Procedure.
In the above judgment, the court further stated that where the original administrative disposition is revoked on administrative appeal, and the appellate agency orders the agency that made the original disposition to make a new, lawful dis-position, then parties should wait until the original agency makes a new disposition as di-rected by the appellate agency in the appeal de-cision. It is only at this point that a party who does not accept the new disposition may file an administrative appeal and administrative suit against it.