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  • Interpretation
  • No.211
  • Date
  • 1986/12/05
  • Issue
    • Does Article 49 of the Customs Smuggling Control Act violate Articles 7 and 16 of the Constitution?
  • Holding
    •        The right of equality provided in Article 7 of the Constitution is to protect the substantial equality of the legal position of the people. It does not restrict the competent authority, with due authorization by the law, from rendering reasonably different treatments by reference to the differences de facto of any particular case and the purposes of legislation. The purpose of Article 49 of the Customs Smuggling Control Act, which provides that “For any protest cases, and in case no goods were seized or the goods seized were not sufficient to pay for the fine or the short-paid duty, the Customs may order the person to pay in deposit, within 14 days, half of the original fine or insufficient amount or furnish an adequate security equal to the same amount. In case no payment was made or no security was furnished within the prescribed time limit, that protest will not be accepted”, is to authorize the Customs, after examination, and subject to the particular facts, to render appropriate punishment. This is to prevent the person subjected to administrative punishment, by submitting a protest, from delaying or evading the execution of duty payment and punishment, and is also to fulfill the Customs policy of preventing smuggling, which is necessary to promote the public interest and not contrary to Articles 7 and 16 of the Constitution. In addition, some of the wording in the section on administrative litigation procedure stipulated in the Act is imprecise and should be examined and amended in order to concur with the preservation of administrative execution and the adequate exercise of the rights of administrative appeal and litigation of the people.
  • Reasoning
    •        Article 7 of the Constitution, which provides “All citizens of the Republic of China, irrespective of sex, religion, race, class or party affiliation shall be equal before the law,” is to protect the substantial equality of the legal position of the people. It does not restrict the competent authority, with due authorization by the law, from rendering reasonably different treatments by reference to the differences de facto of any particular case and the purposes of legislation. Article 49 of the Customs Smuggling Control Act provides that “For any protest cases, and in case no goods were seized or the goods seized were not sufficient to pay for the fine or the short-paid duty, the Customs may order the person to pay in deposit, within 14 days, half of the original fine or insufficient amount or furnish an adequate security equal to the same amount. In case no payment was made or no security was furnished within the prescribed time limit, that protest will not be accepted.” The wording that follows the word “may” is meant to authorize the Customs, after examination, and subject to the particular facts, to render appropriate punishment. This is to prevent the person subjected to administrative punishment, by submitting a protest, from delaying or evading the execution of duty payment and punishment. It is not that Customs shall whatsoever order the person subjected to administrative punishment to pay a deposit or furnish the security needed. Though this provision limits the opportunity for relief of the person subjected to administrative punishment, it aims to prevent the person subjected to administrative punishment, who have no goods seized or whose goods seized were not sufficient to pay for the fine or the short-paid duty, from submitting a protest deliberately under the circumstance that the original administrative punishment was not obviously contrary to law or did not constitute undue punishment. It aims to fulfill the Customs policy of preventing smuggling, which is necessary to promote the public interest and is not contrary to Articles 7 and 16 of the Constitution. As to the person subjected to administrative punishment submitting administrative appeal or litigation against the administrative punishment on paying a deposit or furnishing the security, the administrative authority accepting the administrative appeal or the administrative court shall, subject to the above-mentioned, examine and determine whether that administrative punishment was illegal or improper. Under this circumstance, in case it is found that the Customs’ original administrative punishment on supplementary levying or punishment was illegal or undue, the higher administrative authority may put it to proper disposition, subject to its power of supervision over the relevant administrative authority. In addition, it is to be noted here that some of the wording in the section on administrative litigation procedure stipulated in the Customs Smuggling Control Act is imprecise and may cause deviation in the administrative execution; thus, such wording should be examined and amended in order to concur with the preservation of administrative execution and the adequate exercise of the rights of administrative appeal and litigation of the people. 
      
    • *Translator by Assistant Professor Y.K.Huang.
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