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  • Interpretation
  • No.514
  • Date
  • 2000/10/13
  • Issue
    • Do the Regulations Governing the Supervision of Amusement Park which, without the authorization by legislative law mandate, state that the arcade operator shall not permit minors under the age of 18 to enter his/her place of business on penalty of having his/her business license revoked upon the violation of the said Rules violate Article 23 of the Constitution?
  • Holding
    •        The people*s freedom to run a business is protected as the right to work and the property right under the Constitution. According to Article 23 of the Constitution, the content regarding the requirements of business permission, the obligation a business should obey, and the sanctions imposed for violation of said obligation, mentioned above, should be regulated under the legislative law. If the restriction on a business is authorized under the legislative law and orders are issued as supplemental regulations, the purpose, content, and scope of the authorization should be concrete and definite. This Yuan has held the same in previous Interpretations. In order to maintain the social order, good customs of society, and the physical and mental health of children and juveniles, the Ministry of Education issued the Regulations Governing the Supervision of Amusement Park (hereinafter the “Regulations”) on March 11, 1992. Since the relevant law and system are not fully developed, the order issued under authorization is necessary for certain purposes. However, Article 13, Subparagraph 12, of the Regulations mandates that an arcade operator should not permit children and juveniles under 18 to enter his/her place of business. If the said operator fails to comply with the regulation provided under Article 13, Subparagraph 12, of the Regulations, the permission to run his/her business will be revoked under Article 17, Paragraph 3, of the Regulations. Since the revocation of permission to operate a business is related to the restriction on people*s right to work and property right, it should comply with the constitutional intent. When the relevant issues are regulated under the legislative law, the agency in charge should no longer apply the order issued without the authorization made by legislative law. Article 13, Subparagraph 12, and Article 17, Paragraph 3, of the Regulations violate Article 23 of the Constitution and, therefore, should be abolished.
  • Reasoning
    •        The people*s freedom to run a business is protected as the right to work and the property right under Article 15 of the Constitution. Based on the constitutional protection of the right to work, people are free to choose to engage in a certain business as their profession. Therefore, people are free to start or end a business and determine the office hours, location, customers, and manner of the business. Moreover, based on the constitutional protection of the property right, people are free to operate a business. For example, people are free to determine the manufacture, transaction and disposition of the goods produced by their business. According to Article 23 of the Constitution, the content regarding the requirements of business permission, the obligation a business should obey, and the sanctions imposed for violation of said obligation, mentioned above, should be regulated under the legislative law. If the restriction on a business is authorized under the legislative law and orders are issued as supplemental regulations, the purpose, content, and scope of the authorization should be concrete and definite. This Yuan has held the same in Interpretations Nos. 313, 390, 394, 443 and 510. 
      
    •        In order to maintain the social order, good customs of society, and the physical and mental health of children and juveniles, the Ministry of Education issued the Regulations Governing the Supervision of Amusement Park on March 11, 1992. Since the relevant law and system are not fully developed, the order issued under authorization is necessary for certain purposes. However, Article 13, Subparagraph 12, of the Regulations mandates that the arcade operator should not permit children and juveniles under 18 to enter his/her place of business. This restriction is in regard to the obligation of managing a business. It is also a restriction on the people*s freedom to choose their customers, which is part of the freedom to choose one*s profession. If the arcade operator fails to comply with the regulation provided under Article 13, Subparagraph 12, of the Regulations, the permission to operate the business will be revoked under Article 17, Paragraph 3, of said Regulations. The revocation of permission to operate a business is a sanction for violating this obligation. It is also related to the constitutional protection of the people*s right to work and property right. Therefore, the regulation governing revocation of the permission should be regulated or authorized under the legislative law. The relevant issues have already been regulated by the Juvenile Welfare Act and the Child Welfare Act (See Article 19 and Article 26, Paragraph 2, of the Juvenile Act and Article 33 and Article 47, Paragraph 2, of the Child Welfare Act). Since the relevant issues are regulated under the legislative law, the agency in charge should no longer apply the order issued without the authorization made by the legislative law. This is the fundamental requirement of rule of law in a democratic country. Article 13, Subparagraph 12, and Article 17, Paragraph 3, of the Regulations violate Article 23 of the Constitution and, therefore, should be abolished. Moreover, if people*s behavior violates the legislative law at the time of the act, they have no right to pursue the remedies under the law by asserting that their act is regulated by an order, issued by the agency in charge, which is abolished by the Interpretation made by this Yuan. 
      
    • *Translated by Professor Chin-Chin Cheng.
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