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  • Interpretation
  • No.662
  • Date
  • 2009/06/19
  • Issue
    • Does Article 41, Paragraph 2 of the Penal Code, which stipulates that for several offenses each carries a sentence convertible to fines, if the merged executable sentence should exceed six months, then the final sentence may not be converted to fines, violate the Constitution?
  • Holding
    •     Article 41, Paragraph 2 of the current Penal Code, amended and promulgated as of February 2, 2005, which precludes the application of Paragraph 1 of the same provision on sentences convertible into fines in the event the merger of executable sentences for several offenses that exceeds six months of imprisonment, even with each sentence that may be convertible into fines, violates Article 23 of the Constitution and J. Y. Interpretation No. 366, and shall be invalid on the issuance date this Interpretation.
      
    •     With regard to the part that concerns temporary disposition in accordance with Article 41, Paragraph 2 of the Penal Code, as requested by the two petitioners, there is no need to provide further review in light of this Interpretation. In addition, with regard to the constitutional interpretation filed by one of the petitioners concerning Article 53 of the Penal Code, given that this part of the petition is dismissed, the related temporary disposition is no longer pendent and shall also be dismissed.
      
  • Reasoning
    •     Article 78 of the Constitution specifies that the Judicial Yuan has the power to interpret the Constitution and to unify the interpretation of laws and regulations. Article 171 of the Constitution clearly provides that the law shall be invalid if it violates the Constitution,and that the Judicial Yuan shall issue constitutional interpretations where there are disputes on the constitutionality of the law. Thus regardless whether they are for the purpose of clarifying the ture meanings of the Constitution, resolving disputes in the application of the Constitution, or reviewing the constitutionality of a law, the constitutional interpretations rendered by the Grand Justices of the Judicial Yuan have binding authority to all [government and private] agencies and the people nation-wide, as stated by J. Y. Interpretation No. 185. The Legislative Yuan, based upon the legislative responsibility under the democratic legitimacy as well as within the scope of legislative formation and its inherited authority, may enact or amend laws to meet the realistic needs of the changing society.  While the Legislative Yuan has broad discretion and freedom in exercising this authority, based on the principles of separation of powers and compliance to the Constitution, the legislation shall not violate the Constitution and the constitutional interpretations rendered by the Judicial Yuan. 
      
    •     Article 41 of the Penal Code, promulgated on January 1, 1935 and took effect on July 1, 1935, stipulated: “For a committed criminal offence whose maximum primary sentence is three-year imprisonment or less, with the pronounced sentence being no more than six months of imprisonment or detention and the enforcement of such sentence is clearly difficult in light of physical condition, education, occupation or family conditions, [the sentence] may be converted to fines at the rate of 1 to 3 dollars per day.” For those who have committed multiple offences prior to the final judgment, and with the pronounced sentence of each offence not exceeding six month imprisonment that could have been converted to fine respectively under that provision, once the combined, executable penalty exceeds six month [imprisonment] in accordance with Article 51, it results in the original pronounced sentence not being eligible for fine conversion, and creates unnecessary restriction to the people’s right of freedom. J. Y. Interpretation No. 366 has already provided that the above-stated Article 41 of the Penal Code concerning the limitation of fine conversion to no more than six month imprisonment does not fully comply with Article 23 of the Constitution. Subsequently, Paragraph 1, Article 41 of the Penal Code, as amended and promulgated on January 10, 2001, provides: “For a committed criminal offence whose maximum primary sentence is five-year imprisonment or less, with the pronounced sentence being no more than six months of imprisonment or detention and the enforcement of such sentence is clearly difficult in light of physical condition, education, occupation, family or other reasonable conditions, [the sentence] may be converted to fines at the rate of 1 to 3 dollars per day; except, with affirmation, that the reformation of the offense or maintaining the order of law can hardly be achieved without the execution of the pronounced sentence.” A Paragraph 2 was added: “The same [rule] applies where merger of penalty on multiple offenses which all have the circumstances in the preceding Paragraph, and the executable sentence exceeds six months.” This provision has complied with the meaning and purpose of J. Y. Interpretation No. 366.  However, Paragraph 2, Article 41 of the Penal Code was further amended on February 2, 2005 and took effect on July 1, 2007: “The preceding Paragraph regarding joinder of penalties on multiple offences shall apply in the event the executable sentence is less than six months.” (This provision is reassigned as Paragraph 8, Article 41 of the Penal Code, as promulgated on January 21, 2009 and effective on September 1, 2009). As a result, for several offenses with each of which is eligible for fine conversion but the merger of executable sentence exceeding six months, Paragraph 1 of the same provision is no longer applicable and the penalty of imprisonment shall be enforced.
      
    •     Personal liberty shall be protected is expressly stipulated in Article 8 of the Constitution. To restrict one’s liberty by imprisonment is the last resort for crime deterrence. The State does not need to resort to more severe punishment if lighter means should accomplish the same effect, which is the fundamental purpose of Article 23 of the Constitution. The system of fine conversion that levy a fine, when certain legal requirements are met, over an original imprisonment sentence seeks to prevent the lingering flaws from short-term imprisonment sentences and to alleviate the severity of punishment.  The purpose of merger of penalties rule on multiple offenses under Article 51, Subsection 5 of the Penal Code is to provide proper evaluation with the combined consideration of each individual crime and its pronounced sentence so as to determine the final criminal sentence for the multiple offences committed, so that the requirement of corresponding liabilities with culpabilities can be met.  In accordance with the stipulation of that Subsection, when the individually pronounced sentences are all imprisonment, the final sentence shall be no less than the longest individual sentence and no more than the combined sentences of all offences, which originally did not mean to put the defendant in a more disadvantaged position. However, for several offenses each having an individual sentence that may be subject to fine conversion, yet the combined executable sentence exceeds six months and may no longer be converted into fines, the opportunity for fine conversion is lost and the enforcement would have to be imprisonment. This mounts to an even more unfavorable result to a convicted offense, and contradicts the original meaning of a joint sentence for multiple offenses, as illustrated in J. Y. Interpretation No. 366.
      
    •     The legislative reason for Article 41, Paragraph 2 of the current Penal Code considers that if fine conversion should nevertheless be permitted in the event the executable sentence exceeds six months while each of the several pronounced sentences may still be subject to fine conversion, it is susceptible to the encouragement of committing criminal offences. While this does carry a legitimate purpose, if, however, the judge should believe that it is necessary to subject the criminal offender to imprisonment, whether a single crime or multiple offences, he/she can certainly declare, as a matter of law, a sentence that exceeds six-month imprisonment so that it may not be converted to fines; on the other hand, if a prosecutor should determine that the effect of reformation can hardly be achieved or legal order shall be difficult to maintain without carrying out the pronounced sentence, and that it is inappropriate to engage in fine conversion, the prosecutor may also disallow fine conversion in accordance with the proviso under Article 41, Paragraph 1 of the Penal Code. Thus, even though fine conversion is allowed when the combined executable sentence for multiple criminal offences exceeds six months, it does not amount to the result of encouraging criminal offences. But if fine conversion is disallowed in all cases, it is in fact an over-restriction to personal liberty. Thus, Article 41, Paragraph 2 of the Penal Code, which precludes the application of Paragraph 1 of the same provision on sentences convertible into fines in the event the merger of executable sentences for several offenses that exceeds six months of imprisonment, even with each sentence that may be convertible into fines, violates Article 23 of the Constitution and J. Y. Interpretation No. 366, and shall be invalid on the issuance date this Interpretation.
      
    •     Separately, on one of the petitioners’ claim that Article 53 of the Penal Code, which stipulates the merger of [several] executable sentences, violates the principle of double jeopardy principle, and the request for a constitutional interpretation, it is an argument over the appropriateness of the court’s finding of facts and application of law based on one’s subjective perception without objectively specifying where does that provision contradict the Constitution. Furthermore, on the part of the petition that requests for a constitutional interpretation over Article 54 of the Penal Code, the final judgment upon which this petition is based did not apply that provision. Thus, none of them comply with Article 5, Paragraph 1, Section 2 of the Grand Justices Adjudication Act and shall be dismissed in accordance with Paragraph 3 of the same provision.
      
    •     On the part of the petition filed by both petitioners that concerns temporary disposition under Article 41, Paragraph 2 of the Penal Code, it is no longer necessary to be reviewed in light of the Interpretation issued in this case. In addition, since the part of the petition, filed by one of the petitioners, that concerns the request for a constitutional interpretation on Article 53 of the Penal Code is dismissed, the petition with regard to temporary disposition shall also be dismissed now that it is no longer attached to the [original] claim. 
      
    • Translated by Li-Chih Lin, Esq., J.D.
      
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