The discretion of approval for converting an imprisonment penalty into a fine sanction, which is provided by Article 41 of the Penal Code, is in nature a prosecutorial power in the light of Article 457 of the CCP. However, if the prosecutorial discretion is exercised inappropriately, the law can intervene and offer remedies. Thus, Articles 480 and 486 of the CCP provide, respectively: “A prisoner, his legal representative or spouse may file an objection in the trial court, which rendered the conviction decision with sentence, on the ground that the prosecutorial discretion on penalty conversion had not been exercised appropriately.” ;and “The trial court should make a decision on the objection.” Since the law obligates the sentencing court to decide on the merits of the objection and no restriction is imposed on the court in terms of the approach in making its decision, more than one type of remedy may be available. When the court finds the objection is to be sustained, it must revoke the prosecutorial order that disapproved the application for penalty conversion. To serve the relief of the applicants requesting penalty conversion, the court may either reserve for the public prosecutor a chance to reconsider his/her discretion or instruct on its own motion of the penalty conversion in its decision. The rationale is the same as that in Article 416 of the CCP, which provides the judicial power for altering or revoking a prosecutorial order.
As for the interpretation: “If the trial judge ordered the accused to pay the converted fine and turned in a judicial certificate showing the payment of the fine right after his/her declaration of conviction with an imprisonment penalty, it would be difficult to consider the execution of decision a sound one. If the court indicated in the decision reasoning that the accused should be allowed the conversion of the penalty to a fine, the public prosecutor is not bound by such decision while executing the sentence” as held by Interpretation Yuan-jieh-tzi No.2939, it was made with a view to clarifying that the discretional power over the execution of penalty is a discretion reserved by law for the public prosecutor, and that whether or not any execution difficulty is posed is a matter to be considered and decided by the public prosecutor, taking into account the factual surroundings at the time of execution. In addition, the interpretation: “As to the penalty conversion to fine provided by Article 41 of the Penal Code, the court has to instruct as to the conversion rate between different penalties, but it does not need to decide in advance whether there exists any difficulty with the penalty execution (as the pre-condition for a penalty conversion)” as held by Yuan-tzi Interpretation No.1387, means to clarify that the availability of fine conversion depends on the facts surrounding the penalty execution. Neither the Yuan-jieh-tzi Interpretation nor the Yuan-tzi Interpretation involves the case of an objection filed against penalty execution where the trial court may revoke the prosecutorial decision against fine conversion in the mean time permitting the application for penalty conversion.