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  • Interpretation
  • No.522
  • Date
  • 2001/03/09
  • Issue
    • Are the provisions of Article 177 of the Securities and Exchange Act of 1988, which authorized the imposition of criminal punishment, in violation of the Constitution?
  • Holding
    •       The imposition of criminal penalties on the responsible persons and personnel in the securities business responsible for violation of any prohibitive order, stop order or restraining order within the scope of their business involves restrictions on the people’s rights.  Therefore, the requisite elements of such penalties shall be prescribed by law.  If the law authorizes the issuance of orders to make supplementary provisions in respect of the requisite elements, the purposes, contents and scope of such authorization shall be specific and clear.  Furthermore, the punish ability of the various types of conduct must be foreseeable from the provisions of the enabling law so as to be in line with the principle of clarity and definiteness of punishment.  Article 177 (iii) of the Securities and Exchange Act as amended and promulgated on January 29, 1988, provides, “Any person who otherwise violates any prohibitive order, stop order or restraining order issued by the competent authority pursuant to this Act shall be punishable with imprisonment for not more than one year, or detention and/or a fine of not more than NT$100,000.”  In light of the above, as far as the authorization at issue is concerned, the contents of the acts that may be subject to punishment are unforeseeable, and will be made clear only from administrative orders issued by administrative agencies.  Therefore, the relevant provisions are inconsistent with the aforesaid constitutional intent to protect the people’s rights and thus shall cease to apply as of the date of this Interpretation.  It should also be noted that, with respect to the question about which types of conduct that affect the securities market order should be punishable for violation of a prohibitive order, stop order or restraining order issued by the competent authority pursuant to this Act subsequent to the amendments and deletions of relevant provisions of the Securities and Exchange Act on July 19, 2000, appropriate provisions should be set forth to regulate such types of conduct after due reviews and consideration have been given.
      
  • Reasoning
    •       Although it is constitutional for the legislature, by means of legislative delegation, to authorize administrative agencies to issue orders for the purposes of supplementing the laws, the purposes, contents and scope of such authorization shall be specific and clear so as to conform to the intent of Article 23 of the Constitution.  This Court has repeatedly elaborated on this point when delivering its opinions.  As for the degree of specificity and clarity of the authorization, it should be in proportion to the impact of the orders issued by means of such authorization on the rights of the people.  Since criminal laws deeply concern the people*s rights and interests relating to their lives, freedoms and properties, such laws should be enacted so as to be in conformity with the principle of “no crime and no punishment without pre-existing law.”  If the law authorizes the issuance of orders by the competent authorities to make supplementary provisions, the punishability of the various types of conduct must be foreseeable from the provisions of the enabling law so as to be in line with the principle of clarity and definiteness of punishment.
      
    •       The imposition of criminal penalties on the persons and personnel in the securities business responsible for violation of any prohibitive order, stop order or restraining order within the scope of their business involves the protection of the people’s rights. As illustrated earlier, the various types of conduct that are punishable should be clearly specified in the Securities and Exchange Act.  However, if the law authorizes the issuance of orders to make supplementary provisions in respect of the requisite elements of various offenses, the purposes, contents and scope of such authorization shall be specific and clear, and the punishability of the various types of conduct must be foreseeable from the provisions of the enabling law so as to be in line with the aforesaid constitutional intent.  Article 177 (iii) of the Securities and Exchange Act as amended and promulgated on January 29, 1988, provides, “Any person who otherwise violates any prohibitive order, stop order or restraining order issued by the competent authority pursuant to this Act shall be punishable with imprisonment or detention? for not more than one year, and/or a fine of not more than NT$100,000.”  In entrusting administrative agencies to specify the punishable acts by issuing orders, the contents of the acts that may be subject to punishment are indefinite, and will be made clear only from the administrative orders issued by the administrative agencies.  Therefore, the relevant provisions are inconsistent with the aforesaid constitutional intent to protect the people’s rights and thus shall cease to apply as of the date of this Interpretation.  Needless to say, however, it should be noted that, if the types of conduct of the people were illegal according to the then existing law, no remedy should be available by resorting to this Interpretation.
      
    •       It should also be noted that, with respect to the question about which types of conduct that affect the securities market order should be punishable for violation of a prohibitive order, stop order or restraining order issued by the competent authority pursuant to this Act subsequent to the amendments and deletions of relevant provisions of the Securities and Exchange Act on July 19, 2000, appropriate provisions should be set forth to regulate such types of conduct after due review and consideration have been given.
      
    • *Translated by Vincent C. Kuan.
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