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  • Interpretation
  • No.680
  • Date
  • 2010/07/30
  • Issue
    • Do Article 2, Paragraphs 1 and 3 of the Smuggling Punishment Act contravene the principle of clarity with the authorization of law and the principle of clarity on criminal penalties?
  • Holding
    •     Article 2, Paragraph 1 of the Smuggling Punishment Act stipulates, “Import or export smuggling of controlled articles or substances which exceeds the published amount is subject to no more than seven years of imprisonment, or in addition thereto, a fine of no more than NT$3,000,000.”  Paragraph 3 of the same Article stipulates, “The controlled articles and its amounts, as indicated in Paragraph 1, shall be promulgated by the Executive Yuan.”  The purposes, contents, and scope of this authorization lack clarity, which contravenes the principle of clarity with the authorization of law and the principle of clarity on criminal penalties and shall cease to be effective no later than the second anniversary since the issuance of this Interpretation.
  • Reasoning
    •     The petitioners argue that Article 2, Paragraph 1 of the Smuggling Punishment Act (“import or export smuggling of the controlled articles or substances which exceeds the published amount is subject to no more than seven years of imprisonment, or in addition thereto, a fine of no more than NT$3,000,000”), as applied in the Supreme Court Criminal Judgment 98 Tai Shang Zi No. 3417 (2009) and the Taiwan High Court Kaohsiung Branch Criminal Judgment 97 Shang Sue Zi No. 2032 (2008), are unconstitutional.  Paragraph 3 of the same provision stipulates, “The controlled articles and its amounts, as indicated in Paragraph 1, shall be published by the Executive Yuan.”  Since Paragraphs 1 and 3 must be combined to form an integral penal provision, it is pointed out that they are combined to be the subject matter of this Interpretation.
      
    •     Although the Constitution permits the legislative body to take the means of legislation by delegation, i.e. to authorize the administrative agencies to promulgate regulations to supplement the laws, the purposes, contents, and scopes of such authorization should be clear and concrete.  The degree of clarity in the authorizing provision should correspond with the impact on people’s rights by the authorized regulations.  Since criminal laws deeply concern the people’s life, liberty, and property rights, they must be enacted through statutory legislation and in conformity with the principle of nullum crimen sine lege.  When a law authorizes the governing authority to promulgate regulations to supplement the statute, the culpability of the act  must be foreseeable in the authorizing law so that the authorization is clear and concrete, and in conformity with the principle of clarity on criminal penalties (see J.Y. Interpretation No. 522).  Observing from the totality of the authorizing statute, as long as it is sufficient for the people to foresee that certain act is likely to be subject to criminal penalty, such authorization is not in contradiction with the doctrine of foreseeable culpability, and no affirmation of the culpable act is necessary.
      
    •     The criminal penalty imposed under Article 2, Paragraph 1 of the Smuggling Punishment Act has an enormous effect on people’s liberty and property rights.  However, as to the contents of requirement that constitute the offence, such as the items and amounts of the controlled article, Paragraph 3 of the same Article authorizes the Executive Yuan to decide and publish.  It does not specify the purposes of the control nor identify the factors that should be considered when the items and amounts of the controlled articles are published.  Moreover, the authorizing statute lacks the regulations upon which other relevant matters may be based and inferred, thus the contents of the culpable acts can only be known  from the “Items and Amounts of the Controlled Articles” promulgated and published by the Executive Yuan.  Even by observing the totality of the Smuggling Punishment Act, it is still not foreseeable the smuggling of what items to what amount is likely to be penalized.  As such, the authorization is certainly not clear and concrete, and thus not in conformity with the meaning and purpose of the Constitution to protect the people’s right.  Since the amendment to the Smuggling Punishment Act involves many elements such as national security, social order, and economic and trade policies, and the process may take certain period of time, Article 2, Paragraphs 1 and 3 of the Smuggling Punishment Act shall cease to be effective no later than the second anniversary since the issuance of this Interpretation.
      
    •     On the part that concerns the petitioners’ argument that Article 11 of the Smuggling Punishment Act and Item C of the “Items and Amounts of the Controlled Articles,” as promulgated by the Executive Yuan on October 23, 2003, are unconstitutional, it was only based on their personal opinions to question the constitutionality without pointing out specifically what parts of the above-indicated provisions contradict the Constitution.  As this part of the petition is inconsistent with Article 5, Paragraph 1, Item 2 of the Constitutional Interpretation Procedure Act, it is hereby dismissed in accordance with Paragraph 3 of the same Article.
      
    • Translated by Tzu-Yi Hung/ Ching-Yuan Huang.
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