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  • Interpretation
  • No.446
  • Date
  • 1998/02/13
  • Issue
    • Is the relevant provision of the Public Functionaries Discipline Act, prescribing that the period for filing a review starts from the date of a final criminal judgment, unconstitutional?
  • Holding
    •        It is provided in Article 34, Subparagraph 2, of the Public Functionaries Discipline Act that the application or petition for review shall be completed no later than thirty days from the date on which the relevant criminal judgment becomes final and conclusive.  In the case of any trial of the first and second instance where any judgment rendered thereby may be appealed, the starting point of such period should fall on the date when the judgment becomes final and conclusive. On the other hand, however, in the case of any trial of the first or second instance where judgment rendered thereby is not appealable or any trial of the third instance, the party subjected to the disciplinary measure cannot possibly file a petition in accordance with the aforesaid provision because such judgment becomes final and conclusive without the necessity of service of process thereof once it has been announced or published after the decision of the deliberation, as the case may be.   Consequently, the constitutional intent to protect the people’s right to sue under Article 16 thereof will not be served unless the starting point of the period for filing such review falls on the date of service of such judgment.  Resolution Ref. No. TS-431 of the Committee on the Discipline of Public Functionaries and other similar cases, to the extent that they are in contradiction to the intent hereof, should no longer be applied.
  • Reasoning
    •        The people shall have the rights to petition, to file administrative appeal and to sue, as clearly stated in Article 16 of the Constitution.  The right to sue is the kind of judicial beneficiary right of the people that not only entitles the people to take judicial action to protect their rights when infringed upon, but, in particular, guarantees the right of the people to a fair and speedy trial and, ultimately, to adequate remedies so that the people are free from any inappropriate restrictions imposed by any written or unwritten practice beyond the law and thus are guaranteed with the status as the primary participant in the judicial process. The discipline of public functionaries, which falls within the judicial power, is handled and heard by the Committee on the Discipline of Public Functionaries in the form of trial.  And, since disciplinary measures have significant impact on the right of the people to hold public offices, the party subject to such discipline should be guaranteed with adequate procedural protection based on the principle of due process of law, which, as has been elaborated by this Yuan in Interpretation No. 396, is in line with the constitutional intent to protect the people’s right to sue under Article 16 of the Constitution.
      
    •        According to Article 33, Paragraph 1, Subparagraph 3, of the Public Functionaries Discipline Act, the original transferring authority or the party subjected to the disciplinary measure shall have the right to apply or petition, as the case may be, for the review of the original resolution, which has been reached based on a criminal judgment that is later changed by a final and conclusive judgment.  The legislative purpose thereof is to deal with the unreasonable situation where no alternative remedy is available to a public functionary in the event of any mistake found in the resolution regarding the discipline, which becomes final as soon as it is reached.  Article 34, Paragraph 2, of the same Act provides that the application or petition for review shall be completed no later than thirty days from the date on which the relevant criminal judgment becomes final and conclusive if the application or petition for review is based on one of the reasons prescribed in Subparagraphs 2 through 4 of the preceding Article, and the rationale behind such provision is to maintain the stability of the law.  It is clearly prescribed under Article 35 thereof that the petition for review of the resolution regarding the discipline of any public functionary shall be made in writing, with reasons shown, along with a transcript thereof and a copy of the original resolution and the relevant evidence.  Therefore, it is appropriate for the period prescribed in the aforesaid Article 34, Subparagraph 2, thereof to start from the date when the judgment becomes final and conclusive in the case of any trial of the first and second instance where any judgment rendered thereby may be appealed.  On the other hand, however, in the case of any trial of the first or second instance where judgment rendered thereby is not appealable or any trial of the third instance, the party subjected to the disciplinary measure cannot possibly file a petition in accordance with the provisions of Article 34, Subparagraph 2, and Article 35 thereof because such judgment becomes final and conclusive without the necessity of service of process thereof once it has been announced or published after the decision of the deliberation, as the case may be.  The protection with regard to the time limit available to the people to petition for remedy through litigation is obviously inadequate in this respect.  Consequently, the constitutional intent to protect the people’s right to sue under Article 16 thereof will not be served unless the starting point of the period for filing such review falls on the date of service of such judgment.  Resolution Ref. No. TS-431 of the Committee on the Discipline of Public Functionaries and other similar cases, failing to determine the starting points of the period for filing a review by distinguishing whether the judgment of a particular case is appealable, should no longer be applied insofar as they are in contradiction to the intent as illustrated above.
      
    • *Translated by Vincent C. Kuan
      
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