Administrative Penalty Act

Link to law: http://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?PCode=A0030210

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Chapter I Rules of Application

Article 1

This Act shall apply to fines, forfeiture, and other types of administrative penalties for breach of duty under administrative law, unless it is otherwise prescribed by other applicable laws.

Article 2

In this Act, "other types of administrative penalties" means the following categories of adverse actions of a punitive nature:
1. Restrictive and prohibitive actions: Actions imposing restrictions on or suspension of business; suspension of certificates or licenses; orders to stop the work or to discontinue the use; no passage of vehicles; prohibition on entry into or exit out of harbors, airports or specific places; prohibition on production, sales, export or import; prohibition against application or other restrictions on or prohibition against doing certain acts;
2. Actions of deprivation or abolition of eligibility or rights: Orders to wind up business; orders of dissolution; revocation or annulment of permits or registration; revocation of certificates or licenses; compulsory dismantlement; or other actions of deprivation or abolition of specific eligibility or rights;
3. Actions against reputation: Publicizing personal or trade names or photographs or other similar actions; and
4. Actions of disciplinary warnings: Disciplinary warnings; reprimands; recording of points for violation; recording of times of violation; reformatory courses, supplemental training classes or other similar actions.

Article 3

In this Act, the term "actor" denotes a natural person, a juristic person, an unincorporated body having a representative or manager, a central or local government agency or any other form of organization, who or which commits an act in breach of his or its duty under administrative law.

Article 4

An act in breach of duty under administrative law is punishable only if it is explicitly prescribed so by law or by any self-governing ordinance in force at the time when the act is committed.

Article 5

In the case of change in law or self-governing ordinance after the commission of the act, the law or self-governing ordinance in force at the time when sanction therefor was initially imposed by the administrative agency shall apply; provided, however, that the provision most favorable to the person punished shall apply if the law or self-governing ordinance in force prior to the imposition of the sanction is more favorable to him.

Article 6

This Act shall be applicable to any act in breach of duty under administrative law that is committed within the territory of the Republic of China and is punishable.
An act in breach of duty under administrative law committed on board a vessel or aircraft of the Republic of China outside the territory of the Republic of China or within an area subject to jurisdiction of the Republic of China by law shall be punished in the same manner as if it were an act committed within the territory of the Republic of China.
Where either the commission of an act in breach of duty under administrative law or the consequence resulting therefrom takes place within the territory of the Republic of China, it shall constitute a breach of duty under administrative law committed within the territory of the Republic of China.

Chapter II Responsibility

Article 7

An act in breach of duty under administrative law is not punishable unless committed intentionally or negligently.
In the case of an act in breach of duty under administrative law committed by a juristic person, unincorporated body having a representative or manager, central or local government agency or any other form of organization, the intention or negligence of its representative or manager, or any other person with the authority to represent it, or any of its staff members, employees or workers who commits the act, as the case may be, shall be deemed to be an intention or negligence of such organization.

Article 8

No person may be excused from responsibility for administrative penalty by reason of his ignorance of the law; but the penalty may be reduced or remitted as the situation may justify.

Article 9

An act committed by a person who has not reached the age of fourteen years is not punishable.
Penalty may be reduced for an act committed by a person who is fourteen years of age or older but has not reached the age of eighteen years.
An act committed by a person who was suffering mental disorder or intellectual defects at the time of commission of the act, making him incapable of discerning that the act was unlawful or behaving according to his perception, is not punishable.
Penalty may be reduced for an act committed by a person with obviously decreased capability of discerning that his act was unlawful or of behaving according to his perception for any of the reasons specified in the preceding paragraph.
The two preceding paragraphs shall not apply if the act was brought about due to the intention or negligence of the actor himself.

Article 10

A person who has the legal duty to prevent the occurrence of a fact in breach of duty under administrative law and is able to prevent such occurrence but fails to do so shall be dealt with in the same manner as one who has caused the occurrence of such fact by his positive act.
Where there is danger that the act of a person will result in the occurrence of a fact in breach of duty under administrative law, such person has the legal duty to prevent the occurrence of such fact.

Article 11

An act performed in accordance with law or order is not punishable.
An act performed pursuant to an order of a superior officer in discharge of official duties is not punishable, unless the actor knew that the order was illegal and he failed to present his view to the superior officer in pursuance of the statutory procedure.

Article 12

An act performed by a person in defense of his own rights or the rights of another against present unlawful infringement thereof is not punishable; provided that the penalty may be reduced or remitted even though such act of defense was excessive.

Chapter III Joint Violation of Law and Concurrent Penalty

Article 13

An act performed by a person to avert imminent danger not otherwise avoidable to the life, person, liberty, reputation or property of himself or of another person is not punishable; provided that the penalty may be reduced or remitted even though such act to avert danger was excessive.

Article 14

Persons who act jointly and intentionally in the commission of an act in breach of duty under administrative law shall be punished separately depending upon the seriousness of the situation in which the act committed by each of them has resulted.
In the circumstance mentioned in the preceding paragraph, a person who commits an act in breach of duty under administrative law which is based upon specific personal status or other special relationship shall be punishable notwithstanding that he does not have such status or special relationship.
If penalty may be increased, reduced or remitted because of specific personal status or other special relationship, a person without such status or special relationship is punishable by the ordinary penalty.

Article 15

Where the act of a director of a private juristic person or of any other individual with the authority to represent such juristic person, in performance of his duties as such or for the benefit of the juristic person, results in breach of duty under administrative law, thereby making the juristic person punishable, he shall likewise be punished by a similar amount of fine under the provisions applicable to the juristic person if he has acted with intention or in gross negligence, unless the law or the self-governing ordinance provides otherwise.
Where the act of any staff member, employee or worker of a private juristic person in performance of his duties or for the benefit of the juristic person results in breach of duty under administrative law, thereby making the juristic person punishable, and the director of such private juristic person or any other individual with the authority to represent such juristic person fails to perform his duties to prevent the occurrence of such act in breach of duty under administrative law because of his intention or gross negligence, such director and individual shall likewise be punished by a similar amount of fine under the provisions applicable to the juristic person, unless it is otherwise provided by law or by self-governing ordinances.
The amount of the fine to be imposed as a concurrent penalty under the two preceding paragraphs shall be no more than one million New Taiwan Dollars (NT$1,000,000), unless the benefit gained exceeds one million New Taiwan Dollars (NT$1,000,000), in which case a penalty may be imposed within the scope of such benefit.

Article 16

The preceding article is applicable mutatis mutandis to acts in breach of duty under administrative law committed by any unincorporated body having a representative or manager or of other private law organizations other than juristic persons.

Article 17

An act committed by a central or local government agency or any other organization existing under public law in breach of its duty under administrative law is punishable as prescribed by the law or self-governing ordinance applicable to such duty.

Chapter IV Decision on Imposition,Increase and Reduction of Penalty and Expansion Thereof

Article 18

In the case of imposition of a fine, consideration shall be given to such factors as the culpability of the act in breach of duty under administrative law, the impact resulted therefrom and the benefits gained from such an act. Additionally, the financial ability of the person penalized may also be taken into account.
If the gained benefit referred to in the preceding paragraph exceeds the maximum statutory amount of fine, the fine may be increased to the extent appropriate within the scope of the benefit gained, regardless of the statutory limitation of maximum fine.
In the case of reduction of penalty under this Act, the amount of fine to be imposed shall not exceed one half of the maximum statutory mount of fine, nor shall it be less than one half of the minimum statutory amount of fine; where there is also a provision for remission of the penalty, the fine shall not exceed one third of the maximum statutory fine, nor shall it be less than one third of the minimum statutory fine, unless it is otherwise provided by law or by self-governing ordinances.
The preceding paragraph shall apply mutatis mutandis to other types of administrative penalties of which the imposition is subject to specified limitation of period.

Article 19

Penalty for an act in breach of duty under administrative law which is punishable by a maximum statutory fine of three thousand New Taiwan Dollars (NT$3,000) may be remitted if the act was committed in a trivial circumstance for which it is considered appropriate not to punish.
In the circumstance referred to in the preceding paragraph, corrective actions or dissuasions may be exerted upon the person having committed an act in breach of duty under administrative law, and such actions shall be entered into a record, which shall be signed by such person.

Article 20

A person who, having made another person liable for penalty in consequence of an act in breach of duty under administrative law committed by him for the benefit of such person, has nevertheless received no penalty himself despite the fact that he has gained benefits in property as a result of such act, may be demanded to have such benefits in property returned to a certain extent within the scope of the value of the benefits which he has gained.
If a person is liable for penalty by reason of his commission of an act in breach of duty under administrative law, but another person who, despite the fact that he has gained benefits in property as a result of such act, has received no penalty therefor, the latter may be demanded to have such benefits in property returned to a certain extent within the scope of the value of the benefits which he has gained.
The demand for returning of benefits under the two preceding paragraphs shall be made in the form of an administrative disposition to be delivered by the competent agency imposing the sanction.

Article 21

Unless otherwise provided by this Act or any other laws, only a thing belonging to the person punished may be subject to forfeiture.

Article 22

A thing owned by a person other than the person punished but was made an instrument for the commission of an act in breach of duty under administrative law out of the intention or gross negligence of the owner thereof may be subject to forfeiture.
The foregoing provision applies where the owner, knowing that the thing may be subject to forfeiture, has acquired the ownership for the sole purpose of evading the sanction of forfeiture.

Article 23

If the person punished or the owner of a thing referred to in the preceding article has disposed of or made use of the thing subject to forfeiture or by any other means made it impossible to execute forfeiture of the same, before the sanction of forfeiture is imposed, it may be ordered that the value of the thing be forfeited. If the value of the thing has been reduced or decreased, a sanction of forfeiture may be imposed on the thing together with the price difference resulting from such reduction or decrease.
If the person punished or the owner of a thing referred to in the preceding article has disposed of or made use of the thing subject to forfeiture or by any other means made it impossible to execute forfeiture of the same, after the sanction of forfeiture is imposed, he may be demanded to pay an amount equal to the value of the thing as recompense. If the value of the thing has thus been reduced or decreased, additional payment of the price difference resulting from such reduction or decrease may be demanded.
The demand for payment under the preceding paragraph shall be made in the form of an administrative disposition to be delivered by the competent agency imposing the sanction.

Chapter V Penalty for Single Act and Several Acts

Article 24

If one and single act constitutes the breach of several different duties under administrative law and is punishable by a fine, it shall be punished with the highest amount of fine prescribed by law; provided, however, that the amount imposed shall be no less than the lowest amount among all minimum fines specified with respect to breach of such duties.
If the act in breach of several different duties under administrative law as referred to in the preceding paragraph is punishable by forfeiture or any other type of administrative penalty in addition to a fine, concurrent penalties may be imposed as prescribed by law; provided, however, that no repetitive penalties may be imposed if the penalties prescribed are of the same type and sanction of the most severe penalty is sufficient for the purpose of administration.
If one and single act constitutes simultaneously breach of the Social Order Maintenance Act and any other duty under administrative law and is punishable, for which a punishment of detention has been imposed, no further penalty of fine shall be imposed.

Article 25

A person who has committed several acts in breach of one and the same duty or several different duties under administrative law shall be liable to separate penalties for each act committed.

Article 26

If one and single act constitutes simultaneously a criminal offense or offenses as well as a breach of duty under administrative law, it shall be punishable under the criminal law. However, an administrative penalty may be additionally imposed in the case that the act is punishable by any other types of administrative penalty or that no forfeiture is pronounced by the court over the things that may be forfeited because of the act.
In the case of an act described in the preceding paragraph over which a final decision of non-prosecution or deferred prosecution is made, or over which a final judgment of acquittal, exemption from prosecution, lack of jurisdiction, not to be put on trial, not placed under protective measures, exemption from punishment or reprieve from punishment is pronounced, penalty may be imposed under the provisions with respect to breach of duty under administrative law.
Where the act described in paragraph 1 over which a final decision of deferred prosecution or a judgment of reprieve from punishment is pronounced with an order to pay a specific sum of money or to provide labor to specified public interest groups, local autonomous bodies, governmental agencies, governmental agencies, administrative legal persons, communities or other institutions or groups serving public interests, the money paid or labor provided by the party subject to the act described in paragraph 1 shall be deducted from the fine imposed under the provision set forth in the preceding paragraph.
The amount of labor described in the preceding paragraph to be deducted from the fine imposed shall be calculated under the basic wage per hour multiplied by the labor hour(s) obliged by the initial penalty imposed.
Under one of the following circumstances, the penalty imposed under paragraph 2 shall be annulled by the competent authority upon the application of the party punished or in its discretion and the fine paid returned with no interested accrued:
a. Where the penalty had been imposed upon a final decision of deferred prosecution and that decision of deferred prosecution was subsequently annulled and, in its place, a guilty judgment was made and the conviction was not conditioned by an exemption or reprieve from punishment.
b. Where the penalty had been imposed upon a final decision of reprieve from punishment and that decision of reprieve from punishment was subsequently revoked by a final decision of a court.

Chapter VI Limitations

Article 27

The power to impose administrative penalty is expired upon the lapse of a period of three years.
The period specified in the preceding paragraph shall commence from the day the act in breach of duty under administrative law is complete, except where the consequence of such an act occurs at a later day, in which case the period shall commence from the day on which the consequence occurs.
In the circumstance of paragraph 2 of the preceding article, the period specified in paragraph 1 shall commence from the day on which the decision of non-prosecution or deferred prosecution, or the judgment of acquittal, exemption from prosecution, lack of jurisdiction, not to be put on trial, not placed under protective measures, exemption from punishment or reprieve from punishment is final.
Where a decision imposing administrative penalty is annulled upon decisions out of an administrative appeal, administrative litigation or other remedial proceedings, thus making it necessary to render an alternative decision, the period specified in paragraph 1 above shall commence from the date on which the annulment of the original decision is final.

Article 28

The period of limitation with respect to the power to impose sanction is interrupted if it cannot commence or if the sanction cannot be executed because of an act of God or accident or by operation of law.
Where the period of limitation is interrupted in pursuance of the preceding paragraph, the time that begins following the day on which the cause for such interruption ceases shall be added to the period which had elapsed prior to such interruption.

Chapter VII Agency of Jurisdiction

Article 29

An act in breach of duty under administrative law shall be subject to the jurisdiction of the competent agency at the place where the act was committed, the place of occurrence of the consequence, or the place where the actor maintains his domicile or residence, business office, firm or office of official duty.
In the case of an act in breach of duty under administrative law committed on a vessel or aircraft of the Republic of China outside the territory of the Republic of China, the competent agency at the place of registration of the vessel, the place of departure of the aircraft, or the place of the first berth or landing thereof, as the case may be, inside the territory of the Republic of China, after the act was committed, may exercise jurisdiction.
In the case of an act in breach of duty under administrative law committed on a foreign vessel or aircraft outside the territory of the Republic of China but within an area subject to jurisdiction of the Republic of China by law, the competent agency at the place of the first berth or landing thereof, as the case may be, inside the territory of the Republic of China, after the act was committed, may exercise jurisdiction.
In the case of an act in breach of duty under administrative law committed outside the territory of the Republic of China but within an area subject to jurisdiction of the Republic of China by law, the competent agency at the place where the actor is present may exercise jurisdiction if the agency having jurisdiction cannot be determined under any of the three preceding paragraphs.

Article 30

In the case of a joint act in breach of duty under administrative law committed intentionally, if the place of the act, the actor's domicile or residence and place of business, firm or office of public duty are located in different areas of jurisdiction, the competent agencies at the actor's domicile or residence and place of business, firm or office of public duty shall all have jurisdiction over the case.

Article 31

Where one and single act in breach of one and the same duty under administrative law falls under the jurisdiction of two or more agencies, the agency dealing with the matter first shall have jurisdiction. If it is not ascertainable which one of those agencies dealt with the matter first, jurisdiction shall be determined by an agreement between or among them. If the agencies cannot reach an agreement or if it is necessary to exercise unified jurisdiction, the jurisdiction shall be vested in the agency appointed by the common superior agency thereof.
Where one and single act which constitutes breach of several different duties under administrative law and is thus punishable by fine falls under the jurisdiction of two or more agencies, the agency with the power to impose a fine in the highest amount prescribed by law shall have jurisdiction. If the amount of fine that can be legally imposed by such agencies is the same, the jurisdiction shall be determined in accordance with the preceding paragraph.
Where one and single act which constitutes beach of several different duties under administrative law and is thus punishable by forfeiture or any other type of administrative penalty, the act is punishable separately by each of the competent agencies; provided, however, that no repetitive penalty may be imposed if the penalties specified are of the same type and imposition of the most severe penalty is sufficient for the purpose of administration.
In the circumstance described in paragraphs 1 and 2 above, the other agencies which had jurisdiction previously shall take necessary actions in performance of their respective duties if necessary and transfer all relevant information and materials to the agency imposing the sanction, and the agency imposing the sanction shall, prior to the closure of the inquisition process, notify the other agencies which had jurisdiction previously.

Article 32

If one and single act constitutes simultaneously a criminal offense or offenses as well as breach of duty under administrative law, the part of the case involving criminal responsibility shall be referred to the competent judicial authority.
If the case of the preceding paragraph where the judicial authority, with respect to the criminal responsibility, makes a final decision of non-prosecution or deferred prosecution, or a final judgment of acquittal, exemption from prosecution, lack of jurisdiction, not to be put on trial, not placed under protective measures, exemption from punishment, reprieve from punishment or revocation of reprieve from punishment, the judicial authority delivering such a decision shall notify the administrative agency referring the case to it.
The ordinance concerning reference of the case and inter-agency liaison referred to in the preceding 2 paragraphs shall be jointly determined by the Executive Yuan and the Judicial Yuan.

Chapter VIII Procedure of Sanction

Article 33

When performing his duty, an officer of the administrative agency shall show the actor an evidentiary document in relation to the performance of his duty or display a symbol for adequate identification, and shall inform the actor of the law or regulation which the actor has violated.

Article 34

The administrative agency may take the following actions against the person who is in the very act of breaching a duty under administrative law:
1. To stop the act immediately;
2. To prepare a written record of the act;
3. To take actions for the purpose of preserving the evidence, and, in the case of any act of resistance preventing the preservation of evidence, to take compulsory measures to eliminate such resistance in a state of urgency; and
4. To establish the identity of the actor. If it is actually impossible to make out the identity of the actor because of his refusal to accept or evasion of checking on his identity despite the making of efforts of persuasion and the state is urgent, he may be ordered to follow the officer to a specified place to have his identity checked. If he refuses to follow the officer to such place to have his identity checked, he may be compelled to do so by the officer in the company of police officers.
The compulsory measures taken under the preceding paragraph shall not exceed the degree necessary for the purpose of preserving the evidence or checking on the actor's identity.

Article 35

If the actor is dissatisfied with the actions taken by the administrative agency under the preceding article to exercise compulsory elimination of resistance to preservation of evidence or to compel the actor to go to the specified place to accept checking on his identity, he is entitled to raise an objection instantly with the officer on duty of the administrative agency by stating his reasons therefor.
If the officer of the administrative agency performing the duty considers that the objection raised under the preceding paragraph is justifiable, he shall cease or change the action of compulsory elimination of resistance to preservation of evidence or of compelling the actor to go to the specified place to accept checking on his identity; if he considers such objection groundless, he may continue to act so. At the request of the actor, he shall prepare a record of the essence of the objection and deliver the same to the actor.

Article 36

A thing that may be forfeited or may serve as an evidence may be seized.
The seizure of a thing that may serve as an evidence under the preceding paragraph may be executed only to such an extent and for such a period as may be necessary for examination, inspection, verification or other purposes in connection with the preservation of evidence.

Article 37

The owner, holder or custodian of a thing that is subject to seizure may be demanded to surrender or deliver the thing; if he refuses to do so or resists the seizure, the seizure may be effected by compulsion.

Article 38

The seizure shall be entered into a record, which shall contain details of the time and place of the seizure, the thing seized and other essential information, and shall be affixed with the signature, personal seal or finger print of the person present at the place of seizure; if such person refuses to affix on the record his signature, personal seal or finger print, it shall be so noted.
A receipt shall be prepared, listing therein details of the thing seized, and shall be delivered to the owner, holder or custodian of the thing seized who may be present or have made a request therefor.

Article 39

The thing seized shall be sealed up or otherwise marked and shall be taken care of in a proper manner; if the thing seized cannot be conveniently transported or easily preserved, it may be consigned to the care of a guard or kept in custody by the owner or any other suitable person; if the thing forfeited is apt to be damaged or cannot be easily preserved, it may be put up for outright sale or sale by auction and the proceeds therefrom retained.
If the thing seized is dangerous, it may be destroyed.

Article 40

If there is no need to retain the thing seized whilst the case is pending conclusion or if no penalty is imposed or no forfeiture is ordered with respect to the case, the thing shall be returned; if the thing seized has been sold outright or by auction, with the proceeds therefrom retained, or if the thing has been destroyed, in pursuance of the preceding article, such proceeds or the price thereof, as the case may be, shall be paid as a substitute for the thing; except where the thing ought to be forfeited or must be retained for the purpose of investigation in another case.
If the whereabouts of the person to whom the thing seized should be returned are unknown or it is impossible to return the thing because of the occurrence of any other event, a notice shall be published; in the absence of a claim for returning the thing seized within a period of six months from the date of publication of such notice, the thing shall belong to the State Treasury.

Article 41

If the owner, holder or possessor of or a person interested in the thing is dissatisfied with the seizure, he may raise his objection with the agency executing the seizure.
If the agency executing the seizure considers the objection under the preceding paragraph justifiable, it shall return the thing seized or change the action of seizure; if it considers the objection groundless, it shall give its recommendation and present the case to its direct superior agency for a decision.
In the case of dissatisfaction with the decision made by the superior agency, a statement to this effect may be made only with the filing of a statement of dissatisfaction, if any, with the substantive decision rendering the sanction; provided, however, that a person under the first paragraph hereof may institute an administrative proceeding based solely on the cause specified therein if he is not legally allowed to file a statement of dissatisfaction with the substantive decision rendering the sanction.
The objection under the first paragraph hereof and the proceeding instituted under the proviso to the preceding paragraph shall not affect the execution of seizure or the sanction procedure.

Article 42

Before rendering a sanction, the administrative agency shall allow the person to be punished an opportunity to present his views, except for any of the following circumstances:
1. Where the person to be punished has been offered the opportunity to present his views by a notification given in pursuance of article 39 of the Administrative Procedure Act;
2. Where a hearing has been held ex officio or pursuant to article 43 hereof;
3. Where the sanction is one of the same type made en masse;
4. Where the situation is so pressing that offering of an opportunity to present his views will obviously be against the public interest;
5. Where limitation of the statutory period would make it obviously impossible for him to act accordingly even if an opportunity to present his views were given;
6. Where the facts based on which the sanction is imposed are objectively clear enough to be firmly established; or
7. Where it is otherwise prescribed by law.

Article 43

Before taking any of the actions specified in article 2, subparagraphs 1 and 2, hereof, the administrative agency shall hold a hearing upon application of the person to be punished, except for any of the following circumstances:
1. Any of the circumstances specified under the exception clause to the preceding article;
2. Where the degree and extent to which freedom or right is constrained are obviously minor; or
3. Where the person to be punished has failed to present his views within the specified period despite a notification given in pursuance of article 104 of the Administrative Procedure Act.

Article 44

In imposing an administrative penalty, the administrative agency shall prepare a written sanction and cause the same to be served.

Chapter IX Supplementary Provisions

Article 45

This Act is applicable to a punishable act in breach of a duty under administrative law committed but not punished before the coming into force of this Act and was punished after the coming into force of this Act, with the exception of the provisions set forth in Article 15, Article 16, paragraph 2 of Article 18, Article 20 and Article 22.
The period the power to impose administrative penalty under the preceding paragraph exists shall commence as of the date on which this Act comes into force.
The provisions set forth in paragraphs 3 to 5 of Article 26 of the Amendment promulgated on November 8 of 2011 is applicable to a punishable act simultaneously in breach of a duty under administrative law and constituting a criminal offense or offenses committed before the said Amendment came into force, but was not punished upon a final decision of non-prosecution; the same applies to cases under a pre-existing decision of administrative penalty which was annulled upon decisions out of an administrative appeal, administrative litigation or other remedial proceedings but punished after the coming into force of the said Amendment.
Where one and single act constituted simultaneously a criminal offense or offenses as well as a breach of duty under administrative law before the coming into force of the Amendment of this Act on November 8 of 2011 which was under a decision of non-prosecution or deferred prosecution after the coming into force of the said Amendment, is not subject to the provisions set forth in paragraphs 2 to 5 of Article 26, paragraph 3 of Article 27 and paragraph 2 of Article 32 of the Amendment.

Article 46

This Act shall come into force one year after its promulgation.
The amendment of the Act shall come into force on the date of its promulgation.