The people’s right of action under Article 16 of the Constitution is a fundamental procedural right of the people to seek judicial relief in the case of infringement of their right. Its substance can be realized only by the enactment of relevant laws by the legislature. But this fundamental procedural right of the people can be brought into full operation only if the laws relating to the process of judicial relief enacted by the legislature are consistent with the aim of due process of law and the doctrine of equal protection under Article 7 of the Constitution. Matters in connection with disciplinary sanctions imposed on public functionaries come under the judicial power and are currently heard by the Commission on Disciplinary Sanctions on Public Functionaries (hereinafter the “Disciplinary Commission”). Because disciplinary sanctions greatly affect the right of the people to serve as public functionaries, the system of reconsideration established by the legislature for cases of disciplinary sanctions must of course conform to the aforesaid principles so that the person disciplined may be accorded reasonable protection of his or her right to suit.
The Public Functionaries Discipline Act provides by Article 33, Paragraph 1, Subparagraph 4, that where the facts found in a final and conclusive criminal decision are distinguishable from the facts supporting the original sanction resolved upon, the original agency referring the case for consideration or the person disciplined may refer the case or file an application, as the case may be, for reconsideration. The purpose of the law is to establish a special system of relief to rectify the situation where no other remedial measures are available once the resolution to impose a disciplinary action upon the public functionary has become conclusive notwithstanding any error found in the facts. The person disciplined is thus afforded by this system the right of action by way of an application for reconsideration under certain conditions. The Disciplinary Act further provides in Article 34, Subparagraph 2, that referral or application for reconsideration “by any of the reasons specified in Article 33, Paragraph 1, Subparagraphs 2 to 4” shall be made “within thirty days from the date on which the relevant criminal decision becomes final and conclusive.” The legislative intent is to set a limit on the period in which the referral or application for reconsideration may be made and to specify the commencement date of such period in order to maintain the stability of law. In the situation where the person disciplined is a defendant in a criminal decision who is entitled to raise an objection and the other party (the public prosecutor or private prosecutor) may also raise an objection but chooses to waive or withdraw the appeal, the period for filing an application for reconsideration shall of course begin from the date on which the decision becomes final and conclusive because the person disciplined ought to be able to decide by himself or herself whether to raise an objection and to find out the date on which the criminal decision becomes final and conclusive after receiving a notification served upon him or her in pursuance of Article 360 of the Code of Criminal Procedure, which provides: “The court clerk shall promptly notify the opposing party of waiver or withdrawal of the right to appeal.” However, in the situation where: (1) the person disciplined is a defendant in a relevant criminal decision to which both parties may raise an objection but the other party has not done so; (2) the person disciplined is a defendant in a criminal decision to which he or she may not raise an objection (e.g., a judgment of “not guilty”), whereas the other party only may raise an objection thereto; or (3) the person disciplined is not a defendant in the criminal decision but is a related person, it is impossible for the person disciplined to know the date on which the decision will become final and conclusive and to file an application for reconsideration in due time because, under the current system of criminal procedure, the court, public prosecutor (or prosecutor’s office) or private prosecutor is not required to notify the defendant or the related person of such matters as the date on which service of the judgment is received by the public prosecutor or private prosecutor, the fact that an objection may be raised but has not been raised and the date on which the decision will become final and conclusive. Moreover, the period is a peremptory period, of which a lapse will result in loss of the right. The provision of the Disciplinary Act that the period for application for reconsideration shall invariably begin to run from the date such decision becomes final and conclusive without taking into consideration the distinct status of the disciplined person in the relevant criminal action and whether the person knew about the fact at the time when the decision became final and conclusive, is not supported by proper and reasonable grounds to show adequately the necessity of making such uniformly applicable provision and has obviously failed to make reasonable differentiation in dealing with matters of different nature. It is therefore contradictory to the rule of equal protection.
Other statutory provisions with respect to the date a peremptory period begins to run, similar to the period for application for reconsideration of a disciplined public functionary, include the Code of Civil Procedure, Article 500, Paragraph 2, and the Administrative Proceedings Act, Article 276, Paragraph 2, which provide respectively, with respect to the peremptory period for institution of an action for a new trial: “The period specified in the preceding paragraph begins to run from the time when the judgment becomes final and conclusive or, where the judgment becomes final and conclusive before the service thereof, from the time of service; but if the party does not know the cause of the action for a new trial until after the judgment has become final and conclusive, it begins to run from the time when he or she obtains knowledge of the cause; however, no action for a new trial may be instituted after the expiration of five years from the day when the judgment became final and conclusive,” and “The period specified in the preceding paragraph begins to run from the time when the judgment becomes final and conclusive; but if the party does not know the cause of the action for a new trial until after the judgment has become final and conclusive, it begins to run from the time when he or she obtains knowledge of the cause.” These laws are designed to provide reasonable differentiation in dealing with different matters and specify different commencement dates of such peremptory period in light of different causes of special relief in the action. Therefore, to meet the requirement of equal protection of the right of action, the peremptory period in which a person disciplined who wishes to apply for reconsideration under the Disciplinary Act, Article 33, Paragraph 1, Subparagraph 4, but has no way to know the date on which the relevant criminal decision becomes final and conclusive, must file such an application shall commence from the date known to him or her as the date such decision becomes final and conclusive. The provision set forth in Article 34, Subparagraph 2, of the Disciplinary Act in respect of the commencement date of the period for filing of the application for reconsideration is inconsistent with the essence of our interpretation given above and is thus contradictory to the purposes provided in Article 7 and Article 16 of the Constitution, and shall be rendered inoperative. Additionally, amendments must be made to the Disciplinary Act and all relevant laws, regulations and appropriate rules must be established to meet the constitutional requirement. Before the laws are amended, however, the date known to the person disciplined as the date on which the relevant criminal decision becomes final and conclusive shall be taken by the Disciplinary Commission as the commencement date of the period for filing the application for reconsideration in compliance with this interpretation. As for the petitioners in this case who have had their applications for reconsideration denied by the Disciplinary Commission, further applications for reconsideration may be filed on the ground of this interpretation and the period for filing such applications shall begin to run from the date of service of this interpretation. Our holding in J. Y. Interpretation No. 446 that the commencement date of the peremptory period for filing of an application for reconsideration “in the case of a decision delivered by courts of the first instance and appeal to which an objection may be raised, the period shall begin to run from the date the decision becomes final and conclusive,” shall be supplemented with the holding in this interpretation.
Regarding that part of the petition requesting our additional interpretation on the issue of whether the current system of discipline of public functionaries is contradictory to the purpose of Article 16 of the Constitution in protecting the right of action on the ground that the system fails to put into practice the recusal system (pursuant to Article 29 of the Disciplinary Act which makes the Code of Criminal Procedure applicable mutatis mutandis) and that it adopts the practice of “concurrent imposition of criminal punishment and disciplinary sanction” instead of “imposition of disciplinary sanction after criminal punishment” does not meet the requirement of the Constitutional Interpretation Procedure Act, Article 5, Paragraph 1, Subparagraph 2, as the provisions involved in such matters are not the laws or regulations applied in making the final and conclusive resolution in this case, and the petition must therefore be denied in pursuance of Paragraph 3 of the same article.
*Translated by Raymond T. Chu.