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  • Interpretation
  • No.656
  • Date
  • 2009/04/03
  • Issue
    • Is the provision of the latter part of Article 195, Paragraph 1 of the Civil Code that authorizes a court to take proper disposition to restore reputation constitutional?
  • Holding
    •     The latter part of Article 195, Paragraph 1 of the Civil Code stipulates, “(t)hose whose reputation is injured may further petition for proper disposition to restore that reputation.”  In the event such proper disposition for the restoration of reputation entails a judgment that orders a public apology but does not involve self-humiliation or degradation of humanity, it does not violate the Principle of Proportionality and does not contradict the freedom to withhold expression protected under Article 23 of the Constitution.
  • Reasoning
    •     The right to reputation, necessary in the realization of human dignity, aims to maintain and protect the individual sovereignty and moral integrity.  It is guaranteed under Article 22 of the Constitution (see J. Y. Interpretation Nos. 399, 486, 587 and 603).  Article 195, Paragraph 1 of the Civil Code stipulates: “For any unlawful offense against the body, health, reputation, freedom, credibility, privacy, chastity of an individual, or aggravated unlawful infringement on other moral legal interests, the injured individual may petition for proper monetary compensation.  Those whose reputation is injured may further petition for proper disposition to restore that reputation.”  Based on the latter part of this provision (hereinafter “the disputed provision”), an individual whose reputation is injured may petition the court, in addition to monetary compensation, to render proper disposition to restore his/her reputation, taken into consideration the substantive circumstances of each case  With regard to the means for restoring the reputation, numerous civil trial practices have used the publication of apologies on the newspaper as the proper disposition to restore reputation, and incorporate [this method] into judicial precedents.
      
    •     In accordance with the meaning and purpose of J. Y. Interpretation No. 577, people’s freedom of speech under Article 11 of the Constitution protects not only the active freedom of expression, but also the passive freedom to withhold expression.  Given that the disputed provision entails a court-imposed public apology on the newspaper, it necessarily touches upon the freedom to withhold expression under Article 11 of the Constitution.  While the State may impose limitations on the freedom to withhold expression in accordance with law, given that there may be a wide variety of causes to withhold, the inner beliefs and values that concern morality, ethics, justice, conscience, and faith are essential to the spiritual activities and self-determination of individuals, and are indispensable for to maintain and protect the individual sovereignty and moral integrity. (see Judicial Interpretation No.603).  Hence, in the case where it is necessary to limit the offender’s freedom to withhold expression so that the reputation of the injured party may be restored, [the court] should carefully weigh in the severity of the unlawful infringement on the moral interest against the contents of the imposed expression before rendering a proper decision so as to comply with the Principle of Proportionality under Article 23 of the Constitution.
      
    •     The purpose of the disputed provision is to maintain the reputation and to protect the moral rights of the injured party.  In light of the fact that individual cases concerning the injury of reputation vary and monetary damages may not necessarily be sufficient to compensate or restore [the injured] reputation, it is a justifiable objective to authorize the court to render proper disposition.  That the court orders the offender to make a public apology as what it deems to be a proper disposition does not exceed the scope of necessity, if the court should find such measures as having the offender bore all expenses for the publication of a clarification statement, a note on the injured party’s judicial vindication, or the contents of the court judgment, in whole or in part, are still not sufficient to warrant the restoration of the injured party’s reputation;  provided that the court has weighed in the severity of damage to the reputation, the identity of both parties, and the offender’s economic status.  However, if an order for public apology induces self-humiliation to the point that human dignity is disparaged, it then has exceeded the scope of necessity to restore the reputation and excessively limit the people’s freedom to withhold expression. In accordance with the interpretation above, the disputed provision does not contradict the meaning and purpose of the Constitution to preserve human dignity and respect the free development of morality.
      
    •     Finally, with regard to the rest of the petition for judicial interpretation concerning the front portion of Article 184, Paragraph 1 of the Civil Code, the front portion of Article 195, Paragraph 1 of the Civil Code, (19) Shan Zhi No. 2746 (1930), and (90) Tai Shan Zhi No. 646 (2001) judicial precedents of the Supreme Court, it concerns whether the court has correctly applied the law but does not involve whether the law being applied is objectively unconstitutional.  As to the Supreme Court judicial precedent of (62) Tai Shan Zhi No. 2806 (1973), it was not applied in the final judgment; and the civil judgment by the same court in (51) Tai Shan Zhi No. 223 is not the statute or administrative regulation referred to in Article 5, Paragraph 1, Section 2 of the Constitutional Interpretation Procedure Act; consequently, none of them qualifies as the subject matter for judicial interpretation.  As to the petition for supplemental interpretation, given that J. Y. Interpretation No. 509 deals [only] with Article 310 of the Criminal Code, yet civil tort liability is not within the scope of that Interpretation, no issue for supplemental interpretation is derived.  As a result, this part of the petition does not comply with Article 5, Paragraph 1, Section 2 of the Constitutional Interpretation Procedure Act, and is dismissed in accordance Article 3 of the same Act..
      
    • Translated by Professor Dr. Amy Huey-Ling SHEE.
      
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