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  • Interpretation
  • No.288
  • Date
  • 1991/12/13
  • Issue
    • Is the provision of the Commodity Tax Act requiring that the person punishable by a fine must lodge a deposit with the taxing authority or furnish a form of security before he can file an appeal with the court in conflict with the Constitution?
  • Holding
    •        Article 20, Paragraph 3, of the Commodity Tax Act before its amendment made on January 24, 1990, provided: "In filing an appeal, the person liable to penalty shall lodge a deposit with the competent taxing authority in sum equal to the fine payable or the value of the commodity subject to confiscation or furnish a guaranty therefor to be executed by a reliable business establishment." To the extent that this provision deprives the person liable to penalty who is unable to meet such requirement of the opportunity to file an appeal, it imposes an unnecessary restraint on the people*s right of instituting legal proceedings, and is thus contrary to the purpose of Article 16 of the Constitution in protecting the people’s right of instituting legal proceedings people.
  • Reasoning
    •        The people’s right of instituting legal proceedings protected by Article 16 of the Constitution includes the right of appeal in case of dissatisfaction with the judgment or ruling made by a lower court, and may not be restricted except where it is necessary as specified by Article 23 of the Constitution. The Commodity Tax Act before its amendment made on January 24, 1990, provided in Article 20, Paragraph 1: "All cases of penalty of fine and confiscation under this Act shall be referred by the relevant taxing authorities to the court for a ruling thereon." And Paragraph 2 of the same article states: "If the person liable to penalty is dissatisfied with the ruling delivered by the court, he may file an appeal within ten days from the receipt of the court ruling." But in contrast, Paragraph 3 thereof provided: "In filing an appeal, the person liable to penalty shall lodge a deposit with the competent taxing authority in sum equal to the fine payable or the value of the commodity subject to confiscation or furnish a guaranty therefor to be executed by a reliable business establishment." While this provision is designed to prevent the person liable to penalty from instituting a frivolous appeal for the purpose of delaying the payment of fine, the institution of appeal has no effect in staying the enforcement of the penalty. Accordingly, to the extent that the provision of Paragraph 3 quoted above deprives the person liable to penalty who is unable to meet such requirement of the opportunity to file an appeal, it imposes an unnecessary restraint on the people*s right of instituting legal proceedings, and is thus contrary to the purpose of Article 16 of the Constitution in protecting the people’s right of instituting legal proceedings.
      
    • *Translated by Raymond T. Chu.
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