Principles in Dealing with Areas of MPAs under the Jurisdiction of Two or More Legislations

Currently Taiwan’s Marine Protected Areas are under the jurisdiction of five pieces of legislations, namely, the National Park Law, the Wildlife Conservation Act, the Statute for the Development of Tourism, the Cultural Heritage Preservation Act, and the Fisheries Act. In order to solve the problem that the same area of MPA is subject to the jurisdiction of two or more legislations, a meeting was convened to address the issue. Based on the decision of the meeting, the Fisheries Agency compiled detailed provisions of legislations of the agencies administrating the respective MPAs, the restricted acts and sanctions (as Appendix 1), as well as the relevant prohibited acts and penalties (as Appendix 2).

In its letter of 17 September 2012 (Ref. Nong-Sou-Yu 1011223776) to the respective counties and cities, the Council of Agriculture provided interpretations on the principles in dealing with cases of using spear guns for catching aquatic plants and animals in national parks, in violation of the National Park Law and the Fisheries Act (as Appendix 3), and summarized as follows:

Criminal offence:

It is obvious the penalty imposed in accordance with the Fisheries Act is more severe than that of the National Park Law. The Administrative Penalty Act, article 26 provides: “In case of an act violating simultaneously both criminal law and administrative law, the penalty applicable shall be subject to the criminal law.” Article 32 of the same act provides: “In case of an act violating simultaneously both criminal law and administrative law, the offence involving criminal obligation shall be submitted to the judicial body with who it has jurisdiction.” Accordingly in an area of a national park, any act involving electricity, using toxic substance or dynamite for fishing, the offender shall be submitted to the prosecuting agency for prosecution in accordance with the Fisheries Act, article 48.

Non-criminal violations

Any fishing vessel which violates the relevant conservation and management regulations promulgated by the competent fisheries authorities pursuant to the Fisheries Act, and the violation occurs in an area under the jurisdiction of a national park, in accordance with the Administrative Penalty Act, article 24, paragraph 1, the vessel shall be subject to a fine of the highest amount as stipulated in the respective regulations.

In case the offender has not used fishing vessel for illegal fishing in a national park, and given that there is no evident proving that the offender is operating fishery, application of the Fisheries Act is not appropriate, and penalty shall be imposed by the competent authority who has administrative jurisdiction.

With respect to the ways to resolve concurrence of the National Park Law, the Wildlife Conservation Act, the Cultural Heritage Preservation Act, the Statute for the Development of Tourism, and the Fisheries Act, it is suggested that the interpretation set forth in that letter can serve as reference, and be dealt with in accordance with the following principles:

In case only criminal offence is referred to in the two pieces of legislation, the principle of severer penalty shall apply, and imposing the severer penalty as stipulated in the two legislations as the base of sanction.

In case in the two pieces of legislation, only obligation as stipulated in the Administrative Penalty Act is referred to, the principle of severer penalty shall apply. Where the offender is subject to a fine, the fine imposed shall be the highest amount stipulated in the two legislations. In case of forfeiture or other means of administrative penalty, the imposition of such penalties may be combined in accordance with the provisions so apply.

In case an offence involves criminal obligation as well as obligation as stipulated in the Administrative Penalty Act, the principle of priority of criminal obligation shall apply, and the offence shall be subject to criminal sanction accordingly.