Article 8 of the Constitution provides that physical freedom shall be guaranteed to the people. Contents of statutes restraining physical freedom must comply with the conditions set forth in Article 23 of the Constitution. Rehabilitative measures are supplemental to the criminal punishment, and aim at rehabilitation and treatment of the person with criminal propensity by restraining his movement and liberty. Based on the principles established in the rule of law which protect human rights, as well as the protection function of the Criminal Code, rehabilitative measures under the statutes must be governed by the principle of proportionality. The measures imposed must be proportionate to the seriousness of the act, the person*s criminal propensity, and the future expectation of such person. Article 19, Paragraph 1, of the Act Governing the Control and Prohibition of Gun, Cannon, Ammunition, and Knife [hereinafter “the Act”] provides: "If convicted under Articles 7, 8, 10, 11, Paragraphs 1 to 3 of Article 12, and Paragraphs 1 to 3 of Article 13 and sentenced to imprisonment, a prisoner shall be sent to a place of labor, and be compelled to labor for three years after he has served his sentence or has been pardoned." The provision imposes a mandatory measure of three-year compulsory labor without considering the necessity of prevention or treatment of the person*s propensity to endanger the society. Thus, it may restrain the movement and liberty of those without such propensity, making it disproportionate to its purpose under Article 23 of the Constitution. The mandatory measure of three-year compulsory labor for those convicted under Article 19 of the Act, without considering the necessity of prevention or treatment of the person*s propensity to endanger the society, is inconsistent with this Interpretation and shall be null and void from the date of this Interpretation. The measures of the Act may still be imposed on those convicted under Article 19, Paragraph 1, of the Act as long as they are proportionate under the circumstances. If the measures of the Act are disproportionate, a trial judge may, at his discretion, apply Article 90, Paragraph 1, of the Criminal Code and impose other measures if he believes it is necessary to do so. In the latter case, Article 2, Paragraph 2, of the Criminal Code shall not apply. That is, the principle of applying the newer or the more lenient law shall still govern.

       Article 8, Paragraph 1, of the Constitution provides that "Physical freedom shall be guaranteed to the people. In no case except that of flagrante delicto, which shall be separately prescribed by law, shall any person be arrested or detained other than by a judicial or police organ in accordance with the procedure prescribed by law. No person shall be tried or punished other than by a law court in accordance with the procedure prescribed by law. Any arrest, detention, trial or punishment not carried out in accordance with the procedure prescribed by law may be resisted." This indicates that any measures restraining the people*s liberty shall be prescribed by statutes, and their enforcement shall be conducted by the judiciary, the police, or the court in accordance with the procedure prescribed by statutes. Statutes enacted by the legislative body must comply with the conditions set forth in Article 23 of the Constitution, which are necessary to prevent infringement upon the freedoms of others, to avert an imminent danger, to maintain the social order, or to promote the public welfare. Among many different ways and forms of criminal punishments, the legislature shall choose the ones that can best enable the persons to return to society and become productive members, and the relationship between the extent of punishment and its goals must be reasonable and proper, in order to enforce the fundamental principle in a modern state governed by the rule of law (Rechtsstaat) which protects physical freedom.     

       Article 19, Paragraph 1, of the Act Governing the Control and Prohibition of Gun, Cannon, Ammunition, and Knife provides: "If convicted under Articles 7, 8, 10, 11, Paragraphs 1 to 3 of Article 12, and Paragraphs 1 to 3 of Article 13, and sentenced to imprisonment, a prisoner shall be sent to a place of labor, and be compelled to labor for three years after he has served his sentence or he has been pardoned." Its purpose is to maintain the social order, and to protect people*s lives and property. However, rehabilitative measures are supplemental to the criminal punishment, and aim at rehabilitation and treatment of the person with criminal propensity by restraining his movement and liberty. The reasons for adopting the dual systems of criminal punishment and rehabilitative measures under the current Criminal Code are to keep the principle of no criminal liability without actus reus, to help persons to return to society and to rid them of their criminal propensity, in order to eliminate the roots of criminality and to prevent future crimes. In restraining people*s rights, the rehabilitative measures are no different from punishment in that they isolate the persons from society and restrict their liberty. Based on the principles established in the rule of law which protect human rights, as well as the protection function of the Criminal Code, rehabilitative measures under the statutes must be governed by the principle of proportionality (Verhältnismäßigkeitsprinzip). The measures imposed must be proportionate to the seriousness of the act, the person*s criminal propensity, and the future expectation of the person. The labor program of the rehabilitative measures aims at those who are hardened professional criminals without a proper concept of work, or those who commit crimes because they have no normal jobs. By way of compelling them to labor and to learn working skills and the proper living skills, the purpose of the labor program is to help them adjust more easily when they return to society. Article 90, Paragraph 1, of the Criminal Code provides: "A prisoner may be sent to a place of labor, and be compelled to labor after he has served his sentence or he has been pardoned if he is deemed likely to commit more crimes or is a professional or habitual criminal." Article 3, Paragraph 1, of the Act Governing the Rehabilitative Measures for Offenses of Caching and Receiving Stolen Property provides: "A person over 18 years old who has committed the offenses of larceny or receiving stolen property may be sent to a place of labor, and be compelled to labor before he serves his sentence if he meets any one of the following conditions: (1) he is deemed likely to commit more crimes, or (2) he is a professional criminal who deals in larceny or receives stolen property." Based upon the above principles, both Articles provide that a court, in considering a person*s criminal propensity, shall have the discretion to send him to the compulsory labor program for the purpose of detention. Article 19, Paragraph 1, of the Act Governing the Control and Prohibition of Gun, Cannon, Ammunition, and Knife imposes a mandatory measure of three-year compulsory labor without considering the necessity of prevention or treatment of the person*s propensity to endanger society. Thus, it may restrain the movement and liberty of those without such propensity, making it disproportionate to its purpose under Article 23 of the Constitution. The mandatory measure of three years of compulsory labor for those convicted under Article 19 of the Act, without considering the necessity of prevention or treatment of the person*s propensity to endanger the society, is inconsistent with this Interpretation and shall be null and void from the date of this Interpretation. The measures of the Act may still be imposed on those convicted under Article 19, Paragraph 1, of the Act as long as they are proportionate under the circumstances. If the measures of the Act are disproportionate, a trial judge may, at his discretion, apply Article 90, Paragraph 1, of the Criminal Code and impose other measures if he believes it is necessary to do so. In the latter case, Article 2, Paragraph 2, of the Criminal Code shall not apply. That is, the principle of applying the newer or the more lenient law shall still govern.  Based on the essence of this Interpretation, the relevant authorities shall thoroughly re-examine and amend the relevant provisions of rehabilitative measures in the Act. We need to point out that after the promulgation of the amendment to the Act, trial courts shall not apply this Interpretation, as a matter of course.  

*Translated by Jaw-Perng Wang.