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  • Interpretation
  • No.432
  • Date
  • 1997/07/11
  • Issue
    • Is the term “other violations” used by the Certified Public Accountant Act as a basis for disciplinary measures so indefinite and generalized as to contradict the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip), thus rendering it unconstitutional?
  • Holding
    •        When professionals are subject to disciplinary measures due to their breach of duties that are required in the practice of professional services, the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip) is observed only if there is a predictability regarding which acts or omissions constitute breach of duty and the corresponding disciplinary measures. Even though the legal requirements of disciplinary measures may be expressed in abstract terms, the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip) shall still be maintained where indefinite concepts or general clauses are used. The requirement of legal clarity is not meant to be a formal requirement that all legal terms must be definite and exhaustive. During legislation, the legislators may apply indefinite concepts or general clauses to address the complexity of social activities (to be regulated by the law) and the adequacy of the application of the law in specific cases. With respect to the use of abstract terms in the codes of conduct and disciplinary laws governing professionals, the aforementioned principle is not violated if: the meanings of the abstract terms are not incomprehensible, they are predictable for the regulated persons, and they could be scrutinized and defined by the judiciary. Article 39, Subparagraph 6, of the Certified Public Accountant Act provides that “other violations of the provision of this Act” [are subject to disciplinary measures]; the scope of the application is ascertainable since the basis for disciplinary measures taken against accountants is limited to the violation of the Act. Also, Article 17 of the same Act provides that: “With respect to mandated or entrusted matters, accountants may not engage in improper conduct, or violate or omit the duties of their profession.” Its objective is to establish standards of conduct for accountants. The term “other violations” is not unpredictable and is necessary to maintain the professionalism of accountants and to promote the public interest. Accordingly, it does not violate the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip) or the protection of the people’s right to work under Article 15 of the Constitution.
  • Reasoning
    •        When professionals are subject to disciplinary measures due to their breach of duties that are required in the practice of the professional services, the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip) is observed only if there is a predictability regarding which acts or omissions constitute breach of duty and the corresponding disciplinary measures. Even though the legal requirements of disciplinary measures may be expressed in abstract terms, the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip) shall still be maintained where indefinite concepts or general clauses are used. The requirement of legal clarity is not meant to be a formal requirement that all legal terms must be definite and exhaustive. During legislation, the legislators may apply indefinite concepts or general clauses to address the complexity of social activities (to be regulated by the law) and the adequacy of the application of the law in specific cases. With respect to the use of abstract terms in the codes of conduct and disciplinary laws governing professionals, the aforementioned principle is not violated if: the meanings of the abstract terms are not incomprehensible, they are predictable for the regulated persons, and they could be scrutinized and defined by the judiciary.     
      
    •        Article 39 of the Certified Public Accountant Act provides for the causes of disciplinary actions taken against accountants, among which Subparagraph 6 provides “other violations of the provision of this Act.” As it is limited to the duties under the Act, its scope is ascertainable and thus satisfies the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip). Article 17 of the same Act provides that: “With respect to mandated or entrusted matters, accountants may not engage in improper conduct, or violate or omit the duties of their profession.” Its objective is to establish standards of conduct for accountants. Among them, “omit the duties of their profession” refers to the situation where an accountant ought to have acted but failed to do so or failed to meet the standard required of accountants. On the one hand, this article is based on the consideration that the professional duties of accountants cannot be enumerated exhaustively. On the other hand, in light of the fact that accountants are professionals qualified to practice after passing the national exams, they are able to judge, with their professional knowledge, which acts or omissions would constitute the violation of professional duties and are likely to cause damages to the client’s rights or interests as well as the safety of transactions among the general public. Accordingly, the term “other violations” is not incomprehensible and the application of disciplinary power is not unpredictable. Although there is a certain degree of indefiniteness and generality in the content and scope of the article, the requirement of legal certainty is not compromised since, in specific cases, the applicability of the law may be judged through the judicial process according to the objective values and professional ethics of the society as well as the specific circumstances of the cases. Article 17 of the Act, regarding the professional duties of accountants, and Article 39, regarding the disciplinary measures for violating this duty of care, are necessary to maintain the professionalism of accountants and to enhance the public interest. Therefore, they do not violate the aforementioned principle and the protection of the people’s right to work under Article 15 of the Constitution.  
      
    • *Translated by Pijan Wu.
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