Article 8, Paragraph 1 of Firearms, Knives and Other Weaponry Control Act stipulates : “[Anyone who] manufactures, sells, traffics without permission pen guns, gas guns, anesthetic guns, hunting rifles, air-propelled guns or any gun or cannon provided by Article 4, Paragraph 1, Section 1 of the present Act that can emit metals or bullets and are capable of causing personal injuries or death, is punishable with a life- imprisonment or no less than 5 years of imprisonment, and a fine no more than NTD 10,000,000.”Following this statute, an issue of excessive punishment is arising as all the acts of unpermitted manufacturing, selling, or transporting air guns that are capable of causing personal injury can be subject to the penalty of no less than five years of imprisonment up to a life-imprisonment. Especially, in cases involving minor violations committed in forgivable situation, the minimum penalty imposed can still go as high as 2 and half years of imprisonment. The court is unable to appraise individually the corresponding responsibility the offenders should assume so as to render a sentence parole or order a substitution of fine, even though it applies Article 59 of Penal Code with a view to reducing the punishment. Such sentencing will accordingly create a disproportion between culpability and penalty. As far as the above-mentioned provision on air-propelled guns is concerned, the statute does not provide a combined sentence reduction nor other appropriate alternative sentences for those who commit minor violations. As a result, such restriction on the right of personal freedom, as safeguarded by Article 8 of the Constitution, is in violation of the principle of proportionality mandated by Article 23 of the Constitution and the provision in question shall be invalidated no later than one year since the issuance of this Interpretation.

    As mandated by Article 8 of the Constitution of the Republic of China, the people’s bodily freedom shall be protected. Given that criminal penalty on bodily freedom restricts the fundamental rights of the people, it shall only be exercised as the last resort when no alternative is available. To safeguard those fundamental legal interests in line with Constitutional values, a criminal penalty that restricts people’s freedom of person can be imposed by applying a law passed by the Legislation, if the imposition of penalty is helpful for attaining its goal in terms of public interest and if no other approaches which embrace similar validity and pose relatively minor violation to personal freedom can be relied on. However, there should exist a proportion between the restriction to the freedom of person and the legal interests to be defended. In particular, it must be proportionate between the codified realm of penalty, the hazard caused by the criminal offences, and the liability incurred upon the offenders, so as to be in accord with the principle of proportionality required by Article 23 of the Constitution. (See, J. Y. Interpretation No. 646, No. 551, as well as No. 554)

    Article 8, Paragraph 1 of Firearms, Knives and Other Weaponry Control Act stipulates: “[Anyone who] manufactures, sells, traffics without permission pen guns, gas guns, anesthetic guns, hunting rifles, air-propelled guns or any gun or cannon provided by Article 4, Paragraph 1, Section 1 of the present Act that can emit metals or bullets and are capable of causing personal injuries or death, is punishable with a life- imprisonment or no less than 5 years of imprisonment, and a fine no more than NTD 10,000,000.” It is enacted to prevent violent crimes and protect the safety of the lives, bodies, freedom and property of the people. Thus the legislative objective of this enactment is in conformity with the fundamental constitutional values. Due to the physical hazards for causing injuries as well as its relatively easy access, use, and transfiguration, the air-propelled guns tend to be employed as criminal instruments. Hence, the acts of manufacturing, trafficking and selling the air guns that endanger life or body are so highly hazardous as to warrant the penalization legislation, taking into consideration its general prophylactic function. In this sense, the provision in question that punishes said acts is positive for helping accomplish important public interests. In addition, given that no other equally effective yet less intrusive alternatives are available, the penalty measure is not deemed unnecessary.

    However, since the objects of the manufacturing, trafficking, or selling offenses stipulated by said provision are relatively in wide range, the acts involving certain air guns with lesser capacity of causing injuries will likewise be subject to punishment. From the perspective of crime prevention, while the legislature has an authority to impose higher statutory penalties by enacting special penal laws, the imposition of life imprisonment of at least 5 years imprisonment on those acts risks of constituting an excessively harsh penalty and in turn injuring the substantive justice the penal system is seeking, if the culpability can not be specifically evaluated in some individual cases involving minor offences which are committed in an obviously forgivable condition. To be noted, an air gun which does not possess a capacity to causes injury is nothing more than an entertaining merchandise item that can be obtained easily in legal way. The transfiguration of such air guns takes no high technology, given the easy availability of their spare parts. If a person transfigures an air gun that was legally acquired for a purpose of amusement or entertainment, resulting a product to a general standard of endangering, the hazard to the legal interest on life, body, freedom or property of others are fairly low if the endangering capacity so attained is regarded as minor. In a case of a minor violation which is committed in particularly pitiful conditions, the minimum penalty on the offense can still amount to 2 and half years imprisonment, even if the trial courts applies Article 51 of Penal Code to lessen the punishment. In such event, no parole of sentence or substitution of fine is available for the offenders whose liability is relatively inconsiderable. Accordingly, an injustice of overly severe punishment and a disproportion between offence and penalty is created. From this view, the afore-mentioned provision is considered to violate the principle of proportionality provided by Article 23 of the Constitution of the Republic of China and is invalidated by the end of one year since the promulgation of this Interpretation.

    A legal concept contained in a statute enacted by the State aiming at restraining people’s freedoms or rights is deemed to be not inconsistent with the principle of certainty of law, as long as it is foreseeable for the regulated and likely to be confirmed by means of judicial review. This position has been firmly assumed by several Interpretations by this Yuan. The concept of “endangering capacity” in provision in question should be interpreted as an emitted bullet can cause a penetrating injury to human skin when the body is stroke, based on a general understanding of daily-life verbal expression. According to current judicial practice, the adopted standard of “endangering capacity” for firearms means an emitted bullet bears an energy that can penetrate human skin and muscle layers within its most powerful distance. (Referred to Secretary General’s Letter Mi-Tai-Ting(2)No. 06985, June 11,1991 of this Yuan)In finding out whether a firearm bears an endangering capacity, the trial courts will draw as in practice an evaluation reports from professional assessment agencies on the emission energy of the firearms in question. When the endangering capacity constitutes the core concept of the provision in question, which is foreseeable by the regulated people and likely to be reviewed by judicial process, the provision in question is consistent with the principle of legal interpretation certainty.

    The governing agency is due to amend the provision on air gun in Paragraph 1, Article 8 of the Firearms, Knives and Other Weapons Control Act in accordance with this Interpretation within a year since the promulgation of this Interpretation, with a view to consoling the proper application of national penalty authority and the protection of people’s bodily liberty. If the anticipated amendment is not made in the given period as mandated above, the provision in question shall be invalid.

Translated by TSAI Chiou-ming, Public Prosecutor.