The purpose of Article 16 of the Constitution providing that the people shall have the right of action is to guarantee the people the right to seek judicial remedies for unlawful infringement of their right and interest. The exercise of the right of action, however, is subject to prescription of law, and the law may of course impose reasonable restrictions on the practice of the people’s right of action within the meaning contemplated by Article 23 of the Constitution. Article 321 of the Code of Criminal Procedure, which disallows the institution of private prosecution against one’s spouse, is intended to prevent antagonistic fights between husband and wife in the courtroom because of private prosecution, which thereby jeopardize the marital relations and harmonious family life. It represents a reasonable restriction imposed to maintain the personal and ethical relationship between husband and wife and does not go beyond the scope defined by the Legislature at its discretion. And, as a person is not otherwise prevented by the Code of Criminal Procedure from initiating a criminal complaint against his/her spouse, with the result that his/her right to sue protected by the Constitution is not encroached upon, said article is not in conflict with the purpose of Articles 16 and 23 of the Constitution.

    While Article 321 of the Code places a restriction on a person’s right to initiate private prosecution against his/her spouse, it does not prevent him/her from initiating legally private prosecution against the one who commits jointly with his/her spouse an offense indictable only upon complaint. The parts of J. Y. Interpretations Yuan Tze Nos. 364 and 1844 stating that a person is not allowed to institute private prosecution against the one who commits jointly with his/her spouse an offense indictable only upon complaint are not necessary for maintaining harmonious family life and ethical relationships and are contrary to the purpose of the Constitution in protecting the people’s right of action, and thus must be altered. The Supreme Court Precedents S. T. 2333 (Sup. Ct., 1940), the first paragraph, and F. T. 15 (Sup. Ct., 1940), which imposed on the right of action of the people restrictions that are not prescribed by law, must no longer be invoked as authorities.

    In the case before us involving an offense against marriage, the Petitioner demands the interpretation of this Yuan on the grounds that the Supreme Court Precedents S. T. 2333 (Sup. Ct., 1940) and F. T. 15 (Sup. Ct., 1940) cited as authorities in the irrevocable and confirmed judgment at issue here are in conflict with the Constitution. It must be pointed out at the outset that said Precedents, imposing a restriction to the effect that a person may not, on the doctrine of indivisibility of complaint, institute a private prosecution against the one who has committed jointly with his/her spouse an offense indictable only upon complaint, are essentially the same as the relevant parts of our Interpretations Yuan Tze No. 364 and Yuan Tze No. 1844. Thus, while said Interpretations are not the subject matter in this case, they are closely related with the Precedents at issue here and must be included in our review of this case in order to make an exhaustive interpretation of the Constitution. 

    The purpose of Article 16 of the Constitution providing that the people shall have the right of action is to guarantee the people the right to seek judicial remedies for unlawful infringement of their right and interest. A married person who commits adultery with another person is betraying his/her marriage and jeopardizing the harmonious family life, thereby infringing upon the freedom and right protected by the Constitution, for which Article 239 of the Criminal Code makes the person punishable, and his/her spouse is certainly entitled to seek judicial remedy through the institution of legal action (See J. Y. Interpretations Nos. 507, 242 and 554). The exercise of the right of action, however, is subject to prescription of law, and the law may of course impose reasonable restrictions on the practice of the people’s right of action within the meaning contemplated by Article 23 of the Constitution. Article 321 of the Code of Criminal Procedure, which disallows the institution of private prosecution against one’s spouse, is designed to prevent antagonistic fights between husband and wife in the courtroom because of private prosecution, which would thereby jeopardize the marital relations and harmonious family life. It represents a reasonable restriction imposed to maintain the personal and ethical relationship between husband and wife and does not go beyond the scope defined by the Legislature at its discretion. And, as a person is not otherwise prohibited under the Code of Criminal Procedure from initiating a criminal complaint against his/her spouse under Article 232; Article 233, Paragraph 1; and Article 234, Paragraph 2 thereof, with the result that his right to sue protected by the Constitution is not encroached upon, said Article is not in conflict with the purpose of Articles 16 and 23 of the Constitution.

    Under Article 321 of the Code of Criminal Procedure “no person may bring a private prosecution against his/her lineal ascendant or spouse.” Thus, a person may not initiate private prosecution against his/her spouse who has committed the offense of adultery under Article 239 of the Criminal Code. There is, however, no such restriction on the initiation of private prosecution against the person in an adulterous alliance with his/her spouse. Nevertheless, the Supreme Court Precedent S. T. 2333 (Supreme Court, 1940), the first sentence, stated that: “Under Article 218 of the Code of Criminal Procedure, where a criminal complaint is filed against one of the joint offenders of a crime indictable only upon complaint, the filing of such complaint shall have the same effect as a filing against all other joint offenders. In the circumstance where one of the joint defendants is the spouse of the injured party, since the injured party may not bring a private prosecution against his/her spouse, he/she may not likewise bring a private prosecution against the other defendant on the doctrine of indivisibility of prosecution.” The Court also held in its Precedent F. T. 15 (Supreme Court, 1940): “That a person may not initiate private prosecution against his/her spouse is clearly prescribed by Article 313 of the Code of Criminal Procedure. While the Accused has committed adultery with the private prosecutor’s wife, which act constitutes an offense under Article 239 of the Criminal Code, the offense is indictable only upon complaint. Since the private prosecutor is not allowed to bring a private prosecution against his wife, he may not likewise bring a private prosecution against the Accused on the doctrine of indivisibility of prosecution.” Thus, a person may not bring private prosecution against the one who commits adultery with his/her spouse or the one who commits jointly with his/her spouse an offense that is indictable only upon complaint. Furthermore, under the Code of Criminal Procedure enacted and promulgated before the Constitutional Law came into force on January 1, 1947, the persons against whom no private prosecution was allowed included either “lineal relatives, spouse, and relatives living together and sharing the same property” (Code of Criminal Procedure promulgated by the Nationalist Government on July 28, 1928, Article 339) or “lineal ascendants and spouse.” (Said Code as amended on January 1, 1935, Article 313).  It was also held by this Yuan in Interpretation No. Yuan Tze 364: “Where a married woman commits adultery with another man, the husband, as the spouse of the adulteress, is subject to the restriction prescribed by Article 339 of the Code of Criminal Procedure and shall not be allowed to institute private prosecution against her, but may file with the prosecutor a complaint, seeking public prosecution under the law. (See Interpretation No. Yuan Tze 4). Likewise, he may only file a complaint against the adulterer on the doctrine of indivisibility of prosecution for offenses indictable only upon complaint, rather than bringing private prosecution.” Likewise, this Yuan held in Interpretation No. Yuan Tze 1844, Section (3), the last sentence: “A initiates a private prosecution against his wife B for having committed adultery with C or jointly caused minor injury to him. A and B being married to each other, A is not allowed under Article 313 of the Code of Criminal Procedure to bring a private prosecution against B, and on the doctrine of indivisibility of prosecution the private prosecution brought by A against C must of course also be denied.” Consequently, the restriction on the people’s right to bring private prosecution is expanded by the above cited authorities pursuant to the doctrine of indivisibility of prosecution.

    The Code of Criminal Procedure provides in Article 239, first sentence: “In the case of an offense indictable only upon complaint, the filing or withdrawal of a criminal complaint against one of the joint offenders shall have the same effect as a filing or withdrawal of such complaint against all other joint offenders.”  This is the effect in personam of a criminal complaint for an offense indictable only upon complaint, also called subjective effect, i.e., the doctrine of indivisibility of prosecution referred to in the Interpretations and Precedents cited above. The so-called complaint, however, means a statement made by the injured party of a crime or any other person with the right to complain before an officer of the judicial authority in charge of the criminal investigation, on the facts of a suspected offense, for the purpose of demanding prosecution against the suspect. It is one of the causes leading to criminal investigation (Article 228, Paragraph 1, of the Code). In cases involving offenses indictable only upon complaint, a complaint is the prerequisite for commencement of an action, and neither a public prosecution may be instituted nor a substantive law judgment may be entered without a lawful complaint (See the Code, Article 252, Subparagraph 5 and Article 303, Subparagraph 3). Private prosecution, on the other hand, is a proceeding in which the injured party of a crime or any other person with the right to institute public prosecution, acting as a plaintiff by himself, files with the court a prosecution against the accused in a criminal case and demands a trial thereof. It is distinguishable from a complaint in nature and is similar to public prosecution. This is why Article 343 of the Code provides that “the provisions of Articles 246 and 249 and of Sections 2 and 3 in the preceding chapter with respect to public prosecution apply mutatis mutandis to procedures of private prosecution unless otherwise specifically set forth in this chapter.” Not only is Article 239 relating to the doctrine of indivisibility of prosecution made inapplicable mutatis mutandis to private prosecution, but also the provision that “a prosecution shall not affect a person other than an accused inducted by the prosecutor” set forth in Article 266 of the Code shall naturally be made applicable mutatis mutandis to the effect in personam (i.e., subjective effect) of private prosecution. In other words, a private prosecution is divisible in subjectivity, and it follows apparently that the interpretation of Article 321 of the Code forbidding a person to bring private prosecution against his/her spouse should not be expanded to the extent of making it applicable to a person who has committed jointly with his/her spouse an offense indictable only upon complaint. A fortiori, if a person who, in light of maintaining a harmonious family life, being unwilling to initiate prosecution against his/her spouse, files a criminal complaint against the one committing adultery with his/her spouse because he/she is not legally permitted to bring a private prosecution against the paramour alone, it will have the same effect as against his/her spouse under Article 239, the first sentence, of the Code, and will have even a worse impact on the maintenance of the ethical relationship. If he/she chooses, after bringing such a complaint, to withdraw the part of the complaint against his/her spouse (See Article 239, the last sentence, of the Code) in an effort to maintain the marital relationship, it will result in unnecessary waste of the judicial resources. Thus, we do not believe that the above-quoted interpretations, to the extent of restraining the right of action of the people, are necessary for maintaining harmonious family life and ethical relationships and we hold that said interpretations are inconsistent with the intention embodied in Article 23 of the Constitution and must be modified, and that the Supreme Court Precedents S. T. 2333 (Supreme Court, 1940), the first part and F. T. 15 (Supreme Court, 1940), which imposed on the right of action of the people restrictions that are not prescribed by law, must no longer be invoked as authorities.

    Petitioner further alleges that the absence of provisions in the Criminal Code, Code of Criminal Procedure, and Civil Code with respect to the interruption of the period of limitation of criminal prosecution and the period of prescription of civil claims upon institution of a private criminal prosecution and a civil proceeding incidental to a criminal action, and of provisions therein that a case initiated upon a private prosecution, after being adjudged irrevocably to be not entertainable, shall be referred upon motion to the competent office of prosecutors; that the provisions of the Code of Criminal Procedure, Article 29; Article 31, Paragraph 1; Article 37, Paragraphs 1 and 2; and Article 404, setting forth excessive restrictions on the filing of interlocutory appeals; that the J. Y. Interpretation No. Yuan-je Tze 3889, and Articles 47 and 429 of the Code of Criminal Procedure, prohibiting a private prosecutor from inspecting court records and exhibits; and that the court, by its internal rules, having deprived the Petitioner of her right to carry out a voluntary investigation and deliberately refused to investigate the evidence to the advantage of the Petitioner; have all given rise to suspicions of violation of the Constitution. We have noted, however, that the arguments made by the Petitioner above and the statutory provisions mentioned were not the laws applied by the court in its irrevocable final judgment, and that the elements required by the Constitutional Interpretation Procedure Acts, Article 5, Paragraph 1, Subparagraph 2, are not met. Thus, we are not in a position to take up these issues under Subparagraph 3 of the same Article. Furthermore, the Petitioner argues that Taiwan High Court criminal judgment S. Y. T. 415 (Taiwan High Court, 2003) and judgment C. F. M. S. T. 6 (Taiwan High Court, 2003) on the civil suit incidental to the criminal case, denying the private prosecution by relying on the Supreme Court criminal judgment T. F. T. 147 (Sup. Ct., 1900); and Taiwan High Court criminal judgment S. Y. T. 3381 (Taiwan High Court, 2002) and judgment C. F. M. S. T. 71 (Taiwan High Court, 2002) on the civil suit incidental to the criminal case, denying the motion for change of venue by relying on the conclusion reached at a Taiwan High Court symposium held during 1985, have raised an issue of constitutionality. It must be pointed out, however, that Supreme Court decisions and conclusions reached at Taiwan High Court symposiums are not laws or regulations referred to in the Constitutional Interpretation Procedure Act and do not meet the requirements of Article 5, Paragraph 1, Subparagraph 2, thereof. Thus, we are not in a position to take up this issue under Subparagraph 3 of the same Article.

*Translated by Raymond T. Chu.