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  • Interpretation
  • No.465
  • Date
  • 1998/09/25
  • Issue
    • Is the public notice issued by the Council of Agriculture, Executive Yuan, in respect of the management of protected wildlife and the punishment of illegal sales of such wildlife in violation of the principle of unambiguous authorization?
  • Holding
    •        The public notice of the list of protected wildlife issued by the Council of Agriculture, Executive Yuan, on August 4, 1989, specifying to the effect that the elephant family (Elephantidae) falls into the category of endangered and protected wildlife and is thus included in the list of wildlife so protected, was authorized by virtue of Article 4-II of the Wildlife Conservation Act as enacted and promulgated on June 23, 1989.  The content and scope of the authorization at issue have been expressly specified in Article 3 (v) and Article 4-I of the aforesaid Act, which does not conflict with the Constitution.  In addition, the penalties imposed by Article 33 of the said Act (amended as Article 40 thereof on October 29, 1994) on any person engaging in illegal sales of the aforesaid protected animals and their products as published are essential to the conservation of endangered and scarce wildlife so as to achieve the objective of preserving the environment and ecology.  The said provisions are not designed to prescribe additional penalties to infringe retroactively upon the freedom and property right of the people, nor do they go beyond the scope necessary to promote public interests.  Therefore, they are not in conflict with the Constitution.  In respect of those wildlife or the carcasses, horns, bones, hides, furs, eggs, organs of such wildlife and their products that were legally imported prior to the public notice declaring them as endangered and protected wildlife, as the property right of the people is restricted due to the prohibition against the sale, trade or display thereof with the intent to sell the same subsequent to the public notice at issue, the authorities concerned shall review and revise the relevant provisions to reasonably remedy the various situations after considering such specific circumstances as the actual limitations on various products so that the constitutional intent to protect the property right of the people will be complied with.
  • Reasoning
    •        The public notice of the list of protected wildlife issued by the Council of Agriculture, Executive Yuan, on August 4, 1989, specifying to the effect that the elephant family (Elephantidae) falls into the category of endangered and protected wildlife and is thus included in the list of wildlife so protected, was authorized by virtue of Article 4-II of the Wildlife Conservation Act as enacted and promulgated on June 23, 1989.  The content and scope of the authorization at issue have been expressly specified in Article 3 (v) and Article 4-I of the aforesaid Act, which should be in line with the principle of unambiguous authorization and thus does not conflict with the Constitution.  Furthermore, under Article 23 of the said Act (amended as Article 24, 35? thereof on October 29, 1994), no endangered wildlife or the carcasses, horns, bones, hides, furs, eggs, organs of such wildlife and their products may be imported, exported, purchased or sold without obtaining approval from the authorities concerned.  Therefore, any purchase or sale without approval is certainly an illegal sale of the aforesaid protected animals and their products as published.  The penalties imposed by Article 33 of the said Act (amended as Article 40 thereof on October 29, 1994) on any person engaging in illegal sales of the aforesaid protected animals and their products as published are essential to the conservation of endangered and scarce wildlife so as to achieve the objective of preserving the environment and ecology.  In addition, the said provisions are intended to punish those actions occurring after the publication at issue, but not designed to prescribe additional penalties to infringe retroactively upon the freedom and property right of the people.  All of the relevant measures are meant to remedy the past inadequacies of our nation in respect of environmental and ecological protection, and no other alternative means are available to implement the objectives of conserving the environment and ecology.  Accordingly, since they do not contradict the principle of proportionality, nor do they go beyond the scope necessary to promote public interests, they are not in conflict with the Constitution.  In respect of those wildlife or the carcasses, horns, bones, hides, furs, eggs, organs of such wildlife and their products that were legally imported prior to the public notice declaring them as endangered and protected wildlife, as the property right of the people is restricted due to the prohibition against the sale, trade or display thereof with the intent to sell the same subsequent to the public notice at issue, the authorities concerned shall review and revise the relevant provisions to reasonably remedy the various situations after considering such specific circumstances as the actual limitations on various products so that the constitutional intent to protect the property right of the people will be complied with.
      
    • *Translated by Vincent C. Kuan.
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