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  • Interpretation
  • No.679
  • Date
  • 2010/07/16
  • Issue
    • Is the non-declaration of fine conversion standards in the court judgment involving merging of sentences for multiple offences both permissible and not permissible for fine conversion constitutional?
  • Holding
    •     Interpretation Yuan Zi No. 2702 of this Yuan and J.Y. Interpretation No. 144 do not contravene Article 23 of the Constitution and thus no revision thereof shall be required.
  • Reasoning
    •     Article 8 of the Constitution expressly stipulates that an individual’s right to physical freedom shall be protected. The restriction of one’s physical freedom by imprisonment is the last resort for the deterrence of unlawful acts, and as long as it is not beyond what is necessary, it does not contravene the principle of proportionality under Article 23 of the Constitution. The system of conversion to fine is to prevent the flaws of short prison terms and to alleviate the severity of imprisonment so that what was originally punishable by imprisonment may, under certain statutory qualifications, convert to pecuniary fines. The purpose of merger of penalties for multiple offences is to weigh in the totality of unlawfulness and the degree of culpabilities as well as the necessity of imposing corrective actions on the perpetrator so as to determine the final criminal penalties to be enforced and to meet the requirement of corresponding liabilities with culpabilities (see J.Y. Interpretation No. 662).  In the event of a mixture of individual penalty that is convertible to fine with one that is not, whether the one that is convertible to fine may still be permitted to be as such in the final enforcement of declared sentence is subject to the legislative discretion within the scope of the Constitution.
      
    •     Interpretation Yuan Zi No. 2702 of this Yuan holds that, for crimes involving permissible and non-permissible fine conversion, if the result of the merged penalty should not be convertible to fine, [the court] need not indicate the conversion standard in the announcement of the judgment. J.Y. Interpretation No. 144 further declares, “[i]n accordance with the Criminal Code, if a criminal penalty which may be convertible to fine is combined with another criminal penalty not convertible to fine and, as a result of the combination, the original convertible penalty becomes unconvertible, then the standard of conversion of the convertible penalty does not need to be stated in the judgment.”  It is with the consideration that, in merging the penalties involving crimes convertible and non-convertible to fine, for those who, by the very nature of the crime committed, need to be subject to the correction of prison sentence in order to better achieve the objective of crime correction, fine conversion is not permitted in the merged penalty for both types of crimes. The purpose of the above Interpretation is to correct criminal behaviors through the imposition of imprisonment, and is justifiable.  Neither does it opt for unnecessary and more severe penalties nor does it violate the objectives of the sentence merger system for multiple offences and the principle of proportionality under Article 23 of the Constitution, and therefore is unnecessary to be modified.
      
    •     J.Y. Interpretation No. 144, however, focused on further illustration of Interpretation Yuan Zi No. 2702 of this Yuan due to diverse opinions regarding the application of law by different governing authorities, and was not decided in accordance with the principal of the Constitution to require that the merger of sentences involving crimes for both types shall be impermissible for fine conversion.  The legislative body may naturally consider on the basis of penal policy, and focus on the merging of sentences of crimes that may be converted to fine and those that may not be, and exercise its discretion within the scope of the meaning and purpose of the Constitution.
      
    •     In addition, J.Y. Interpretation Nos. 366 and 662 concern with the permissibility of fine conversion in situations where the court declares the merged sentence to be more than six-month imprisonment on multiple offences, with each of which all subject to fine conversion. If fine conversion is not available to any of the offences committed, it does not fall within the scope of the above-mentioned Interpretations, making them inapplicable under such circumstances.  It should also be pointed out that whether conversion to social services under Article 41 of the Criminal Code may be available is a matter within the authority of the criminal prosecutors.
      
    • Translated by Alex C.Y. Tsai, Esq. and Chien Yeh Law Offices.
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