It is explicitly prescribed by Article 20 of the Constitution that the people shall have the duty of performing military service in accordance with law. However, the Constitution says nothing about the military service system and how the recruitment and conscription of troops will be implemented. In modern rule-of-law countries, the military service system is directly concerned with the need of national defense, and a secure national defense enables a country to resist possible invasion, thereby safeguarding the people*s fundamental rights such as those in respect of their life, body, freedom, and property. Article 137 of the Constitution states that "the national defense of the Republic of China shall have as its objective the safeguarding of national security and the preservation of world peace." Accordingly, matters relating to calling up and recalling the people to serve in the armed forces and the sanctions for violation of such duty must be prescribed by law to be enacted by the legislature by taking into consideration the need of national security and social development.
It must be noted that whether an act in violation of a duty under administrative law should be liable to administrative penalty or criminal punishment is an issue within the scope of power of legislative discretion and is subject to determination by the legislature by taking into account such factors as the nature of the event, the degree of detriment to legal rights and interests, and the effects of the control that the legislature intends to achieve. Insofar as such penalty does not go beyond the principle of proportionality, it should not be considered unconstitutional. In other words, the legislature, with its power of legislative discretion, may enact provisions for different types of punishment for acts in violation of law. Take the case of illegal entry into or exit from the country, for example. The Immigration Act sets out, in addition to sanctions by administrative fines under Article 59, criminal punishment under Article 54 for difference regulatory purposes. Thus, in case of an act in violation of a duty under administrative law, the fact that administrative penalties are specified by a statute for such violation does not prevent the prescription of criminal punishment by other statutes regardless of whether there is any difference in the legal rights and interests to be protected. It also follows that, for offenses against military service, the legislature is empowered to make appropriate prescriptions in respect of different categories of conscription and recall made during peacetime and wartime of servicemen in active or reserve service by taking into consideration the degree of importance of such conscription or recall to national defense, the seriousness of the detriment to legal rights and interests, and the extent of restraint on personal interest resulting from the punishment. Under the Act Governing the Punishment of Offences Against Military Service, Article 11, Paragraph 1, Subparagraph 3, a reservist who "fails to report the relocation of his residence as required without good cause" is liable to punishment of imprisonment for not more than one year or detention or a fine of not more than 300 yuan. The Act further provides in Article 11, Paragraph 3, that a reservist who commits any of the offenses specified in Paragraph 1 thereof, thereby making it impossible to serve on him the order of recall, shall be deemed to have committed an act with intent to evade draft and be liable to punishment as specified in Article 6 or 7 of the Act. The reason underlying the law is that the situation where the actual residence of a reservist during a specific period does not correspond with the address in his family registration is relevant to the public interest contemplated by the legislature in enacting military service laws, and that it differs from an act of violation of the Immigration Act in that the latter involves only the control over the exit and entry of ordinary citizens. It is thus appropriate that the legislature, taking into consideration the necessity to control the movement of reservists and the damage to legal interest to be caused by an act of non-compliance with the duty to report, adopts measures of criminal sanction on offenders of abstract danger to ensure the effective implementation of recall of troops for national defense and to uphold the reservist recall system. Moreover, the court may, in deciding each individual case, take into account the circumstances in which the reservist violates his duty and decide an appropriate punishment to the extent permissible by law. Accordingly, we hold that the provisions at issue are not harsh legislation and are not contrary to the principle of proportionality laid down in Article 23 of the Constitution. With regard to the provision of Article 11, Paragraph 3, of the same Act that, where failure to report has made the order of recall undeliverable the case will be dealt with in the same manner as an attempt to evade the recall, it goes without saying that in applying this provision the elements required for imputation of the liability must not be disregarded.
That Article 10 of the Constitution allowing people the freedom of residence and migration is intended to protect the right of the people to decide of their own free will their place of residence, movement, and travel, including departure from and entry into the country has been explicated in our Interpretation No. 454. The Act Governing the Punishment of Offences Against Military Service, by Article 11, Paragraph 1, Subparagraph 3, imposes upon reservists only the duty to report to the agency concerned as required to make the future orders of recall effectively deliverable, rather than placing any restriction on the exercise of their right of free choice of location of residence or movement, and is therefore not in conflict with Article 10 of the Constitution.