The procedure upon which a governmental organ bases its imposition of any measures restraining the people*s liberty, regardless of whether their status is that of a criminal defendant or not, must be prescribed by statutes. The contents of the statutes must be proper in substance, and must comply with the relevant conditions set up in Article 23 of the Constitution. This Yuan has repeatedly interpreted that, without complying with the abovementioned statutes, the measures would not be consistent with Article 8 of the Constitution guaranteeing physical freedom. 

      Article 11, Paragraph 1, of the Gangster Prevention Act (hereinafter the "Act") provides "The court may confine the accused for a period of no more than a month. If necessary, the court may extend the confinement for a period of one month. The extension shall be limited to one time only." This confinement is a compulsory measure whose purpose is to keep the accused in a certain place to maintain orderly procedure before the final decision of the court. This is a serious restraint on the people*s physical freedom. Nevertheless, the Act does not explicitly provide the conditions upon which a court may base its imposition of confinement. In addition to the grounds for making a warrant arrest without previous summons, as provided in Articles 6 and 7, which may also be deemed to be proper reasons for confinement, the Act authorizes the court full discretion to decide the accused*s confinement without regard for whether the accused would be likely to breach the social order again, or whether there is any risk that the accused would try to avoid further trials; for example, that the accused would try to escape, conceal and destroy evidence, or threaten the accuser, victims, or witnesses. In this regard, Article 11, Paragraph 1, of the Act has exceeded the extent of necessity, and is inconsistent with Articles 8 and 23 of the Constitution and this Yuan*s previous Interpretations. It shall become void and null within one year from the date of this Interpretation. Before the amendments of the relevant statute, the courts shall carefully and properly consider the essence of this Interpretation in making their confinement decision.

      The procedure upon which a governmental organ bases its imposition of any measures restraining the people*s liberty, regardless of whether their status is that of a criminal defendant or not, must be prescribed by statutes. The contents of the statutes must be proper in substance, and must comply with the relevant conditions set up in Article 23 of the Constitution. Interpretations Nos. 384 and 471 of this Yuan have stated that without complying with the abovementioned statutes, the measures would not be consistent with Article 8 of the Constitution guaranteeing physical freedom.

      Article 23 of the Act provides that in trying gangster cases, the courts shall apply the Code of Criminal Procedure (hereinafter the "Code") if the Act and other statutes or regulations do not contain special provisions. Nevertheless, in trying gangster cases and in application of the law, the courts shall also consider and weigh the differences between the norms and structures of the Act and the Code. Article 11, Paragraph 1, of the Act provides: "The court may confine the accused for a period of no more than a month. If necessary, the court may extend the confinement for a period of one month. The extension shall be limited to one time only." The Act*s confinement is to assure the effectiveness of the trial before the court*s decision becomes final, and its purpose is certainly similar to that of the detention in the Code. The facts, that the Act purposely terms the measure as "confinement" instead of "detention" and that its requirements are not completely the same as those in the Code, demonstrate that the legislative structures of the two statutes are different and that one shall not automatically apply to the other. The court*s broader discretion of confinement authorized by the Act is certainly necessary for maintaining the social order. However, those provisions relevant to the restraints of people*s rights must not be vague, and shall comply with the constitutional protection of human rights and the principle of proportionality. (See J.Y. Interpretation No. 384).

      Article 11, Section 1, of the Act provides that the court may confine the accused in a certain place. It is a compulsory measure whose purpose is to maintain orderly procedure before the final decision of the court. Although it is necessary, it is a serious restraint on the people*s physical freedom. The Act does not explicitly provide the conditions upon which a court may base its imposition of confinement. Articles 6 and 7 of the Act provide the grounds that a court may issue an arrest warrant without previous summons. In addition to the above grounds, which may be deemed to be proper reasons for confinement, the Act authorizes the court full discretion to decide the accused*s confinement without regard for whether the accused would breach the social order again, or whether there is any risk that the accused would try to prevent further trial; for example, that the accused would try to escape, conceal and destroy evidence, or threaten the accuser, victims, or witnesses. In this regard, Article 11, Paragraph 1, of the Act has exceeded the extent of necessity, and is inconsistent with Articles 8 and 23 of the Constitution and this Yuan*s previous Interpretations. It shall become void and null within one year from the date this Interpretation. Before the amendments of the relevant statute, the courts shall carefully and properly consider the essence of this Interpretation in making their confinement decision. 

*Translator by Jaw-Perng Wang.