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  • Interpretation
  • No.329【Treaties Subject to the Parliamentary Deliberation of the Legislative Yuan Case】
  • Date
  • 1993/12/24
  • Issue
    • What is the meaning of a “treaty” under the Constitution? What shall be sent to the Legislative Yuan for parliamentary deliberation accordingly?
  • Holding
    •        The term “treaty” in the Constitution refers to an international written agreement concluded between the Republic of China (“R.O.C.”) and other States or international organizations. It includes those concluded under the designations of "Treaty" or "Convention"; it also includes agreements concluded under "Agreement" or like designations with legal effect and with their contents directly involving important matters of the nation and/or rights and duties of the people. Those concluded under the designations of “Treaty,” “Convention,” or “Agreement” and containing ratification clauses must certainly be sent to the Legislative Yuan for parliamentary deliberation. Other international written agreements shall also be sent to the Legislative Yuan for parliamentary deliberation unless their contents were authorized by law or with the prior approval of the Legislative Yuan, or if their contents are identical to what has been provided by municipal laws.
  • Reasoning
    •         The President shall, in accordance with the provisions of this Constitution, exercise the power of concluding treaties; the Premier and Ministers shall refer treaties subject to the parliamentary deliberation of the Legislative Yuan to a Cabinet Meeting of the Executive Yuan for resolution; the Legislative Yuan shall have the power to deliberate on and approve treaties. All these mechanisms are stipulated in Article 38, and Article 58, Paragraph 2 and Article 63 of the Constitution accordingly. Treaties concluded according to constitutional provisions hold the same status as laws. Therefore, the term “treaty” in the Constitution refers to an international written agreement concluded between the R.O.C.—including its authorized institutions and groups—and other States—including their authorized institutions and groups—and/or international organizations. It includes those concluded under the designations of “Treaty” or “Convention”; it also includes agreements concluded under “Agreement” or like designations with legal effect and when their contents directly involve important matters—such as defense, diplomacy, finance and economics—of the nation and/or rights and duties of the people. Among them, those concluded under “Treaty”, “Convention”, “Agreement” or like designations and containing ratification clauses must certainly be sent to the Legislative Yuan for parliamentary deliberation. Other international written agreements shall also be sent to the Legislative Yuan for parliamentary deliberation unless their contents were authorized by laws or with the prior approval of the Legislative Yuan, or if their contents are identical to municipal laws, for instance, if the contents reiterate what laws have provided, or the contents have already been enacted into law. International written agreements that are not subject to the parliamentary deliberation of the Legislative Yuan or other agreements not considered as treaties but entered into by competent authorities or their authorized institutions or groups should be processed by competent authorities, depending on the nature of the agreement, following the regulation-setting procedure or general administrative procedure. Needless to say, the Regulations Governing the Processing of Treaties and Agreements enacted by the Ministry of Foreign Affairs shall be amended in accordance with this Interpretation.
      
    •         Treaties involving an alternation of the boundaries of the nation, according to Article 4 of the Constitution, shall also be resolved by the National Assembly.  Agreements concluded between Taiwan and Mainland China are not regarded as international written agreements referred to in this Interpretation; therefore, it should also be specified that the issue of whether or not these agreements should be sent to the Legislative Yuan for parliamentary deliberation falls outside of the scope of this Interpretation.
      
    • ______________________
      
    • * Translation by Wei-Sheng HONG, based upon the previous translation by Fort Fu-Te LIAO 
      
    • **Also available in  Leading Cases of the Taiwan Constitutional Court, Vol. III (2020). 
      
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