The criminal sanction imposed upon an individual by the government is a necessary compulsory means. The kind of criminal sanction that shall be imposed for a particular kind of anti-social behavior is to be determined by the legislature at their discretion. It has been clarified in J.Y. Interpretation No. 476 that some special criminal laws enacted especially for certain crimes do not violate the principle of proportionality if those special criminal laws have due purposes, necessary means, and proper restrictions as required by Article 23 of the Constitution. 

      Imprisonment is a serious restriction on physical liberty. It is proper and reasonable only if it is necessary to compulsorily isolate criminals for rehabilitation for the purpose of maintaining the social order. The sentencing determination shall take into consideration the harmful effect of the criminal act to be sanctioned and the significance of the public interest to be protected. The use of narcotics damages the physical and mental well-being of narcotic users and leads to the perpetration of crimes causing serious harm to society. Therefore, the legislature must take necessary measures to regulate narcotics use and imprison narcotic users to prevent the widespread use of narcotics. Article 9, Paragraph 1, of the Statute for Narcotics Elimination, which was revised and promulgated on July 27, 1992, provides that anyone who has been convicted of using narcotics, shall be sentenced to three to seven years of imprisonment. Article 13-1, Paragraph 2, Subparagraph 4, of the Law for Control of Narcotics, which was revised and promulgated on January 13, 1995, provides that anyone who has been convicted of using narcotics illegally, shall be sentenced to no more than three years of imprisonment or detention, or shall be fined no more than 10,000 NT Dollars. While Article 13-1, Paragraph 2, Subparagraph 4, of the Law for Control of Narcotics is applicable to anyone who has been convicted of using narcotics illegally regardless of whether the narcotic user is addicted to the narcotics or not, or regardless of the detrimental effect caused by the use of the narcotics, the purpose of the regulation is to deter narcotics use by imposing criminal sanction. Therefore, Article 13-1, Paragraph 2, Subparagraph 4, of the Law for Control of Narcotics complies with the principle of proportionality and is consistent with Articles 8 and 23 of the Constitution. The Statute for Narcotics Elimination was revised and renamed the Statute for Drug Control on May 20, 1998, and the Law for Control of Narcotics was revised and renamed the Statute for Control of Narcotics on June 2, 1999 [More specific information is provided here to avoid confusion about which law or statute is which.]. The Statute for Control of Narcotics provides various public security sanctions including rehabilitation, medical treatment and protective discipline for narcotics users based on their level of drug use. As for those narcotic users who are first offenders and those who are second offenders but who have stated their intention to abstain from drug use after rehabilitation, their criminal sentence will be revoked under the Statute for Control of Narcotics. Article 35, Subparagraph 4, of the Statute for Drug Control provides that the provisions set forth in the Statute for Narcotics Elimination are applicable to executive or executory judgments rendered before the revision of the Statute for Drug Control. As a result, Article 20 of the Statute for Drug Control is inapplicable to executive or executory judgments rendered in accordance with the Statute for Narcotics Elimination and the Law for Control of Narcotics. While the provision set forth in Article 20 of the Statute for Drug Control is consistent with Article 2, Paragraph 3, of the Criminal Law, it should be reviewed and amended in order to comply with the legislative intent of the newly revised Statute for Drug Control.         

      The criminal sanction imposed upon an individual by the government is a necessary compulsory means. To invoke criminal sanction for various types of anti-social behavior, the legislative intent of the criminal sanction must be legitimate and the means to achieve the legislative intent must be effective without other less intrusive alternatives. In addition, the restriction imposed upon fundamental human rights by the criminal punishment, the significance of the public interests protected by the legislature and the detrimental effect caused by the anti-social behavior, must be proportional. The kind of anti-social behavior that constitutes a criminal offense, the kind of criminal sanction that shall be imposed, whether the criminal punishment is a proper and necessary means to achieve the legislative intent, and whether a particular behavior will adversely affect an individual or the society are to be determined by the legislature within their discretion. It has been clarified in J.Y. Interpretation No. 476 that some special criminal laws enacted especially for certain crimes do not violate the principle of proportionality if those special criminal laws have due purposes, necessary means, and proper restrictions as required by Article 23 of the Constitution. 

      Imprisonment is a serious restriction on physical liberty. It is proper and reasonable only if it is necessary to compulsorily isolate criminals for rehabilitation for the purpose of maintaining the social order. The sentencing determination shall take into consideration the harmful effect of the criminal act to be sanctioned and the significance of the public interest to be protected. The use of narcotics is a self-inflicted harm and it will affect the central neural system of the narcotic user, causing hallucinations and subsequent psychological and physical dependency. A long-term user of narcotics will become addicted to narcotics. Once the user becomes addicted to narcotics, it is difficult for the user to abstain from drug use. Drug addiction will adversely affect the user’s life, the ability to work and subsequently may destroy his or her family. Without the normal routine of life, the ability to work and the support from his or her family, the narcotic user will become a burden on his or her family and society. The worst situation is that a long-term narcotic user will commit major crimes to obtain the narcotics he or she needs, causing a threat to public security and a danger to society. Considering the detrimental effect caused to the entire country by narcotics traffic and use, the legislature must take necessary measures to regulate narcotics use and imprison narcotic users to prevent the spread of narcotics. Article 9, Paragraph 1, of the Statute for Narcotics Elimination, which was revised and promulgated on July 27, 1992, provides that anyone who is convicted of using? narcotics shall be sentenced to three to seven years of imprisonment. Article 13-1, Paragraph 2, Subparagraph 4, of the Law for Control of Narcotics, which was revised and promulgated on January 13, 1995, provides that anyone who is convicted of using narcotics illegally, shall be sentenced to no more than three years of imprisonment or detention, or shall be fined no more than 10,000 NT Dollars. While it is true that Article 13-1, Paragraph 2, Subparagraph 4, of the Law for Control of Narcotics is applicable to anyone who is convicted of using narcotics illegally regardless of whether the narcotic user is addicted to the narcotics or not, and regardless of the detrimental effect caused by the use of the narcotics, the purpose of the regulation is to deter narcotics use by imposing criminal sanction. Therefore, Article 13-1, Paragraph 2, Subparagraph 4, of the Law for Control of Narcotics complies with the principle of proportionality and is consistent with Articles 8 and 23 of the Constitution. The Statute for Narcotics Elimination was renamed the Statute for Drug Control on May 20, 1998. Article 9, Paragraph 1, of the Statute for Narcotics Elimination became Article 10 of the Statute for Drug Control. The Law for Control of Narcotics was renamed the Statute for Control of Narcotics on June 2, 1999. Article 13-1 of the Law for Control of Narcotics became Article 10 of the Statute for Control of Narcotics. The Statute for Control of Narcotics was later revised and categorized into different levels based on the different degrees of detrimental effect of narcotics. The Statute for Control of Narcotics also provides various public security sanctions [disciplinary measures] including rehabilitation, medical treatment and protective discipline for different narcotics users based on their level of drug use. 

      As for those narcotic users who are first offenders and those who are second offenders but who have stated their intention to abstain from drug use after rehabilitation, their criminal sentence will be revoked under the Statute for Control of Narcotics. Article 35, Subparagraph 4, of the Statute for Drug Control stipulates that the provisions set forth in the Statute for Narcotics Elimination are applicable to executive or executory judgments rendered before the revision of the Statute for Drug Control. As a result, Article 20 of the Statute for Drug Control is inapplicable to executive or executory judgments rendered in accordance with the Statute for Narcotics Elimination and the Law for Control of Narcotics. While the provision set forth in Article 20 of the Statute for Drug Control is consistent with Article 2, Paragraph 3, of the Criminal Law, it should be reviewed and amended to comply with the legislative intent of the newly revised Statute for Drug Control.        

*Translated by Li-Chih Lin, Esq., J.D.