Articles 8 and 15 of the Constitution explicitly provide that citizens’ personal liberty and property shall be protected. Any criminal penalty imposed on personal liberty or property is always a reluctant compulsory measure having the characteristic of being the last resort, and is subject to strict limitations. If the imposition of criminal penalty is the only necessary and effective means to help protect the specific and important rights guaranteed by the Constitution, provided that the restrictions on fundamental rights by such criminal penalty is proportional to the significance of the rights the law intends to protect and the degree of the culpable act, such imposition is not disallowed (see J. Y. Interpretations No. 544 and No. 551). However, in determining whether to impose criminal penalty on an act of violation, it is the legislators who are better suited to take into consideration the various factors such as social environment, criminal phenomena, public mentality and criminology of a specific given time, and reflect them in the designing of the function, structure and decision-making process of the legal system. Moreover, this allows timely modification of legislative direction to meet social changes. Therefore, the judiciary should give proper deference to related legislative findings of facts and forecast as long as they are reasonable and sustainable..
Electronic game-play is one of the many personal leisure activities, thus arcades has become a place for modern entertainment and release of stress.. Other than industrial structure and economic development, because the content or episode of electronic games can easily attract attention and by their very nature there has to be win or lose in the end, the operation of electronic arcades tends to have adverse psychological effects on children and juveniles. Because children and juveniles are easy to lure away from home and hang around by electronic arcades, they often overstay in the arcades without proper parental guidance and school protection. Inevitably, they neglect their school work and waste money in playing games and likely expose themselves to become potential crime victims or illegal conducts. In addition, because electronic games are easy and cheap to play, electronic arcades also become popular gathering places for the general public, which not only impact public safety and social peace, but also often become places for drug trafficking, sex , gambling and other derivative crimes. Therefore, the operations of electronic arcades are also relevant to juvenile protection, public safety and social peace. This nation has a long history of regulating electronic arcades to maintain their order as well as to safeguard the public safety and social peace, so that consumers who enter electronic arcades can release stress and entertain themselves by accessing suitable electronic games for their respective needs and not be mistakenly exposed to or become obvious target of criminal activities due to the lack of arcade management. Initially the governing authority was the Police Department which for a time completely banned electronic arcades. As of 1990, the governing authority was transferred to the Ministry of Education which promulgated the Guidelines for Assisting the Management of Electronic Arcades the same year. However, because there was no effective legislative act on electronic arcades at the time, the governing authority could only invoke [provisions from] the Corporate Act, Commercial License Registration Act, Corporate Tax Act, and other relevant statutes to punish violations, including, among other things, operating an electronic arcade without proper business licenses. Subsequently, in light of the significant adverse impact on the society by the operations of electronic arcades, together with relevant scandals that generated wide-spread public concerns and skepticisms, the Ministry of Economic Affairs in 1996 took over the governing authority. In 2000, the Statute on the Management of Electronic Arcades was enacted in the hope to provide proper guidance on arcades management as well as the normalization and commercialization of the arcades industry.. Since the implementation of this Statute, the Executive Yuan has proposed to the Legislative Yuan to repeal the criminal penalty therein. Yet in light of the electronic arcade industry’s overwhelming negative impact on the society, which can hardly be equally viewed with any other industries, another bill to reinstate the criminal penalty was proposed to strengthen the management [of arcades]. However, none of the two bills have enacted into law.
Because of the unique nature of electronic arcades whose operations involve issues concerning social peace, public morals, as well as the citizens’ mental and physical well being, electronic games are divided into general and restrictive categories; whereas electronic arcades classified as restrictive may still provide brain-stimulating games, no persons under 18 may be admitted under the Statute. In addition, to effectively enforce the classification measures set forth in the Statute, no electronic arcade may be jointly operated under both general and restrictive licenses (see Article 5, Paragraphs 1 and 2 of the Statute). To achieve the objective set forth by the above-indicated managing measures, the manufacturers, importers or software designers of electronic games shall, before [their] manufacturing or importing, petition the central governing authority to review the software and to issue evaluation and classification documents; and, at the time of [manufacture] output or importation, petition to the central governing authority to inspect and issue equipment classification certified labels (see Article 6, Paragraph 1 of the Statute). No electronic arcades may display or use any game machine that has not been inspected and categorized, nor can they alter the classification labels already being inspected and categorized (see Article 7, Paragraph 1 of the Statute). Given that the electronic arcades’ operating facilities concern the lives, properties, and safety of their consumers, such facilities shall also comply with urban planning/zoning, architecture and fire safety regulations (see Article 8 of the Statute). In addition, because electronic arcades necessarily impact social peace, their operating facilities shall maintain a distance of at least 50 meters from elementary, middle, high and vocational schools, as well as hospitals that all have a heightened requirement for environmental peace (see Article 9, Paragraph 1 of the Statute).
Article 15 of the Statute provides: “No person may engage in the operation of electronic arcade without petition for business license registration in accordance with this Statute.” The so-called “petition for business registration” means both “business license certificate” and “business classification certificate” in accordance with Article 11 of the Statute, which requires the registrations of business classification, business equipment category, manager(s) of business operations, and business venue to the governing authority at the Special Municipality or County/City. Such registrations shall be in compliance with Articles 5, 6, 7, and 8 of the Statute. Suffice it to say that the purpose of having electronic arcades register for business licenses in accordance with Article 15 of this Statute is to safeguard social peace, public safety, and the sound mental and physical health development of citizens (especially children and juveniles) through through management and control in advance.
Article 22 of the Statute provides: “Anyone who violates Article 15 of this Statute shall be punished no more than one year of imprisonment, detention or fined no less than half of a million or no more than two million five hundred thousand New Taiwan Dollars, or all of the above” The purpose of imposing criminal penalty on those who operates an electronic arcade without petitioning a business registration is to deter arcade operators from evading official inspections on operation classifications, equipments, or facilities. It helps prevent incidents such as gambling that threaten social peace, public safety and endanger citizens, especially concerning the sound physical and mental development for children and juveniles. That the legal interests the Statute intends to protect conforms with the important value of the Constitution, the objective of the Statute is deemed appropriate, and the criminal penalty adopted by Article 22 is conducive to achieving the above objective. Although monetary fine may be the less intrusive control measure, in light of the fact that electronic arcades are driven by windfall profits and organized operations, it is insufficient to achieve the same degree of deterrent effect in comparison with criminal penalties that restrict the physical freedom [of individuals]. While the legislators could have discarded the preventive measure of compulsory prior registrations and imposed imprisonment or detention only when consumers suffer from actual damages by gambling and so forth, the legislative objective, as reflected from Article 15 of the Statute and in light of the broad-based public interest, especially to protect the sound mental and physical development of children and juveniles, is to prevent such irreparable harm from taking place, be it to children, juveniles or the society as a whole. After all, based on the statistics of the National Police Agency of the Ministry of the Interior, between 1996 and 2007, up to 90% of police-raided unlicensed electronic arcades were engaged in illegal gambling activities. Another statistic shows that of all the gambling cases involving electronic arcades in 2007, no more than 10% were operated with licenses while more than 90% were operated without licenses. Apparently there is a probable casual connection between unlicensed electronic arcade operations and criminal activities such as illegal gambling. Therefore, in achieving the quest for more extensive protection before any harm is done, the legislators sought to impose criminal penalties on unlicensed electronic arcade operations. This decision can be viewed as both factually based and rationally rendered. The disputed criminal penalty measures are deemed necessary and should hereby be affirmed.
Finally, while Article 22 of the Statute may result in an electronic arcade operator who has not otherwise petitioned for a business license nevertheless incur criminal penalty even without engaging in any illegal gambling or other criminal activities, the disputed statutory provision does provide the judiciary with considerable discretion to impose different degrees of penalties based on the culpability of the crime. This, in combination with the principle of de minimis non curat lex laid out in Article 253 of the Criminal Procedural Law, the “suspension of prosecution” provision set forth in Article 253, Paragraph 1 of the Criminal Procedural Law, the “commutation of sentence” provision under Article 59 of the Criminal Law, and the “probation of sentences” provision under Article 74 of the Criminal Law, should be sufficient to avoid undue hardship in imposing criminal penalty. Although existing legal regime that regulates other entertainment industries similar to electronic arcade business only impose administrative penalties on those who operate without petitioning for a business license, it does not mean that once a certain law imposes administrative penalty, no other laws may impose criminal penalties regardless of differences in the background facts. Also, instead of setting up a fixed location for operation, electronic arcade operators in practice are often found to use small-scale convenient stores, sole-proprietorship or partnership businesses spreading over all places as a cover to set up equipment for gambling and to avoid petitioning for business license and many restrictions that associate with it. In comparison with other entertainment businesses, this piecemeal operation strategy adopted by electronic arcade operators has apparently increased the difficulties on enforcement and relatively heightened detriment to the legal interests. Therefore, the decision of the related governing authorities to impose heavier criminal penalty has a rational basis and should be sustained. It can hardly be rushed to conclude that such limitations on fundamental rights in the disputed statutory provision is not proportional and out of balance with the significance of legal interests intended to be protected and the level of detriment caused by the [illegal] act.
In sum, the criminal penalty provision concerning those who operate an electronic arcade without business license and registration under Article 22 of the Statute is in compliance with the principle of proportionality set forth under Article 23 of the Constitution, and does not contradict Articles 8 and 15 of the Constitution.
*Translated by Li-Chih Lin, Esq., J.D.