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  • Interpretation
  • No.388
  • Date
  • 1995/10/27
  • Issue
    • Shall an incumbent President who is campaigning for re-election be subject to criminal prosecution, despite the provision of Article 52 of the Constitution, which provides that the President, unless he is recalled or discharged from office, shall not be subject to any criminal prosecution except being charged with rebellion or treason?
  • Holding
    •        Article 52 of the Constitution provides that the President, unless he is recalled or discharged, shall not be subject to any criminal prosecution except being charged with crimes in relation to rebellion or treason. This is to pay respect to and provide protection for the President, being the head of the State, for his special status as Commander of the Army, Navy and Air Force and assuming other important duties internally, and representing the Republic of China externally. When an incumbent President is campaigning for re-election, the campaign activities shall be governed by the Presidential and the Vice-Presidential Election and Recall Act. However, since his status as the President remains unchanged during the campaign, Article 52 of the Constitution still applies.
  • Reasoning
    •        Article 52 of the Constitution provides that the President, unless he is recalled or discharged, shall not be subject to any criminal prosecution except being charged with crimes in relation to rebellion or treason. This is to pay respect to and provide protection for the President, being the head of the State, for his special status as Commander of the Army, Navy and Air Force, promulgating laws, appointing and discharging civil and military officers internally, and representing the Republic of China externally. By this provision, the President’s exercise of his powers can be ensured and political stability and the development of foreign relations can be maintained. However, the privilege or immunity which excludes the President from criminal prosecution is designed for the post of the President. It is neither given for personal protection, nor is it granted without limitation. If the President commits crimes in relation to rebellion or treason, he shall be subject to criminal prosecution. As to situations under which the President commits crimes other than rebellion and treason, the prosecution for such crimes is to be only temporarily withheld. The application of the Criminal Code or relevant laws which provide for criminal punishment is not permanently excluded. 
      
    •        When an incumbent President is campaigning for re-election, as a candidate, his campaign activities shall be governed by the Presidential and the Vice- Presidential Election and Recall Law. However, his status as President remains unchanged. Under the principle of the supremacy of the Constitution and the purpose of Article 52 of the Constitution, unless he is recalled or discharged, an incumbent President who is campaigning for re-election, shall not be prosecuted in accordance with the Criminal Code and criminal provisions provided for in the Presidential and the Vice-Presidential Election and Recall Act, except for the commission of rebellion or treason.  
      
    • *Translated by Wellington L. Koo, Formosa Transnational Attorney at Law.
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