Article 15 of the Constitution guarantees people’s property right. The essence of this constitutional guarantee is to protect the rights of property owners to freely use, to benefit from and to dispose their properties and to protect them from the interference and infringement of the public authorities or of third parties in order to realize personal freedom, to develop personal characteristics and to maintain personal dignities. (See J.Y. Interpretation No. 400.) The Judicial Yuan has repeatedly stated that the legislative branch may enact law to restrict or limit people’s property right and will not give rise to the issue of constitutionality so long as the restriction or limitation does not exceed the degree of necessity as mandated under Article 23 of the Constitution and is stipulated by statute or by regulation promulgated under the clear authorization of law. (See J.Y. Interpretation Nos. 313, 488 and 600.) The confiscation is a kind of administrative punishments which compulsorily deprive of a person’s property when she breaches her duty imposed by the administrative law or when her property is owned illegally. It goes without saying that the confiscation shall be promulgated in accordance with the foregoing constitutional guarantee and constitutional mandates.
Article 11 of the Foreign Exchange Control Act stipulates that, “Travelers or service crew personnel of transportation vehicles, vessels or airplanes who carry foreign currencies while crossing national border shall declare to and register with the custom office. The relevant regulations will be promulgated jointly by the Ministry of Finance and the Central Bank of the Republic of China (Taiwan).” On March 21, 2003, the Ministry of Finance issued the Administrative Order of the Ministry of Finance, [5]-Tai-Chai-Jon-Tze, No. 925000075(March 21, 2003) stipulated that, “Any traveler or service crew personnel of transportation vehicles, vessels or airplanes who carry foreign currencies while crossing national border that exceed USD$10,000.00 or its equivalent shall declare to and register with the custom office.” Besides, Article 24, Paragraph 3, of the Foreign Exchange Control Act stipulates that, “The custom office shall confiscate those foreign currencies carried by anyone who crosses the national border and fails to declare to and register with the custom office pursuant to Article 11 of this Act. When anyone files a false declaration of his carried foreign currency, the custom office shall confiscate the portion of foreign currency carried exceeding the declared amount.” These statutory provisions and relevant administrative order (hereinafter referred to as “the provisions at issue”) are enacted and promulgated in order to balance international payments and to stabilize national finance (See Article 1 of the Foreign Exchange Control Act.) while also carrying the function of preventing economic crimes. The provisions at issue were enacted and promulgated with a just legislative purpose.
The declaration system on the trafficking of foreign currencies, as prescribed by the provisions at issue, solely imposes the obligation of declaration and registration upon those travelers or service crew personnel of transportation vehicles, vessels or airplanes who carry foreign currencies while crossing national border exceeding USD$ 10,000.00 or its equivalent. When there is a truthful declaration, there shall be no violation of the provisions at issue. There declaration system is of great convenience to those travelers who are subject to the obligation of declaration and registration, to those travelers who are not subject to the obligation of declaration and registration, and to the custom office as well. The declaration requirement is important to the agency-in-charge to monitor the statuses and movements of foreign currencies in and out of the nation and to enable the agency-in-charge to take timely and necessary measures to stabilize the national finance and national economy, while also preventing economic crimes. Therefore, the declaration requirement is a necessary means to control foreign currencies.
In order to ensure the compliance and the effectiveness of the declaration requirement, it is indeed necessary to impose compulsory measures or penalties on those people who fail to file a declaration or fail to declare truthfully. With respect to the question what compulsory measures or penalties shall be adopted, it shall be more suitable for the legislative branch to make the appropriate decision, taking into account both the policy of foreign exchange control and the protection of people’s rights. The stipulation of confiscation under Article 24, Paragraph 3 of the Foreign Exchange Control Act is an administrative penalty against anyone who carries foreign currency exceeding USD$10,000.00 and fails to declare and register truthfully. The penalty is administrative in nature and is adopted with a view to prompt voluntary and truthful declaration and is less severe than its criminal counterpart. Taking into account the frequency and characteristics of travelers or service crew personnel of transportation vehicles, vessels or airplanes who carry foreign currencies in and out of the nation, the provisions at issue are not in contravention of the constitutional mandate of the principle of proportionality under Article 23 of the Constitution and are not in contravention of the constitutional guarantee of the protection of people’s property right. In addition, the provisions at issue clearly impose the obligation of declaration on travelers or service crew personnel of transportation vehicles, vessels or airplanes and clearly delineate the penalties against the violators; therefore, the provisions at issue are not in contravention of the constitutional mandate of the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip).
The second half of Article 11 of the Foreign Exchange Control Act stipulates that, “The relevant regulations will be promulgated jointly by the Ministry of Finance and the Central Bank of the Republic of China (Taiwan).” This is a statutory authorization which authorizes the agencies-in-charge to promulgate jointly regulations to govern the procedure, process and other relevant matters closely related to the declaration. It goes without saying that the regulation shall be promulgated in accordance with the relevant provisions of the Standard Act for the Laws and Rules and the Administrative Procedure Act. However, the foregoing Administrative Order issued by the Ministry of Finance was neither promulgated under the name and the provisional format of an administrative regulation, nor in compliance with the public notice requirement for the implementation of a regulation. Further, the Ministry of Finance failed to promulgate the regulations jointly with the Central Bank of the Republic of China (Taiwan). Furthermore, the Administrative Order issued by the Ministry of Finance only prescribed that the traveler or service crew personnel who carry foreign currencies while crossing the national border exceeding USD$10,000.00 shall declare to the custom office, and is silent on the procedure and process of the declaration. Hence, the Administrative Order is inconsistent with Article 11 of the Foreign Exchange Control Act, Articles 154 and 157 of the Administrative Procedure Act, and Article 3 of the Standard Act for the Laws and Rules, and shall be reviewed and revised by the relevant agencies as soon as possible.
Translated by Professor Chun-Jen Chen.