Go to Content Area :::

Decisions

Home > Decisions > Docket Search > Before 2022
:::
:::
  • Interpretation
  • No.733【Case regarding the selection of a chairperson in a professional association】
  • Date
  • 2015/10/30
  • Issue
    • Does the Section 2 of Article 17 of the Civil Associations Act regarding“ A chair person shall be elected from the standing directors by the vote of directors and, if no such position of standing directors is set, then selection shall be made by the vote among the directors.”violate the Constitution?
  • Holding
    •        Section 2 of Article 17 of the Civil Associations Act regarding“ A chair person shall be elected from the standing directors by the vote of directors and, if no such position of standing directors is set, then selection shall be made by the vote among the directors.” has imposed restriction beyond necessary extent on the autonomy of the professional associations on internal structures and affairs and thus violates the principle of proportionality encompassed in Article 23 of the Constitution and the right to the freedom of association  in Article 14 of the Constitution and shall lose validity a year from the official declaration of this interpretation.   
  • Reasoning
    •        Article 14 of the Constitution regarding the freedom of association is to protect the people’s right to form and to participate in an association for a specific purpose under a common will, guaranteed with protection on the duration, autonomy on internal structure and affairs as well as freedom on activities (referring to the Constitution Interpretation Number 644). The election of a chair person or other responsible person is under the same protection by the freedom of association as well.  Yet, the associations of all sorts could carry different meanings to individuals, societies or democratic systems, form connection of various degrees with public interest and thus be subjected to legal restrictions at different levels. The restriction imposed on the aforementioned election procedure may vary according to the nature of the association and no such issue regarding constitutional violation on the principle of proportionality will arise if means taken has not exceeded the necessary scope.
      
    •        Section 2 of Article 17 of the Civil Associations Act provides that “Where the quota of directors and supervisors is not less than three (3) respectively, as provided in the preceding section, standing directors and standing supervisors may be elected by and from the directors and supervisors, and the quota may not exceed one-third (1/3) of the total number of directors and supervisors respectively; furthermore, a chairperson of the board of directors shall be elected by the directors from the standing directors, or elected by and from the directors if there is no standing director.”, under which, a chairperson shall be elected by the directors as clearly required by the words “ a chairperson of the board of directors shall be elected by the directors from the standing directors, or elected by and from the directors if there is no standing director.”(Hereinafter referred to as disputed clause.)  Such disputed clause is made non-mandatory on the social and political associations by Articles 41 and 49 that allow the exception on the election of employees if otherwise provided in their charter; Yet it remains mandatory to the professional associations regarding their selection of chairpersons unless provided otherwise by other laws (referring to Article 1 of the same law) on virtue of the limit imposed on the internal affairs and discretion of the civil associations.
      
    •        The purpose of the disputed clause is to help the civil associations with their healthy development (Legislature Gazette, volume 77, issue 38). In addition, professional associations are composed of people from the same units, groups or professions (refer to Article 35 of the Civil Associations Act) for purposes of coordinating relations among same professions, advancing common interests and promoting social and economic progress. The chairperson of a professional association should not only act on behalf of the association in participation of all activities but also execute responsibility according to Article 18 of the Civil Associations Law “The directors and supervisors of the civil associations should execute their respective responsibility according to the resolutions and charters.”; Further, the chairperson is under a duty to convene the members of congress (member of representatives) and directors’ meeting pursuant to Section 1 of Article 25 “The members’ (member representatives) congress of a civil association is divided into two types: periodical meetings and temporary meetings, and both shall be convened by the chairperson of the board of directors.” and Section 1 of Article 29 “The board of directors and the board of supervisors of a civil association shall hold a meeting every three (3) months, and may notify the alternate directors and alternate supervisors to attend the meeting as non-voting delegates.”The execution of such responsibility, due to their connection with internal structure and operation of affairs, will affect the sound development of the association. The restraint imposed by the law on the election of a chairperson, if not going beyond the necessary extent of the legislative purpose, is not impermissible, yet the election of a chairperson of a professional association, whether indirectly by the directors, directly by the members or by other appropriate methods set forth in charters, causes no interference to the purpose on achieving a healthy development of an association and improvement on the progress of the social economy. The disputed clause mandatorily requires that a chairperson of the board of directors shall be elected by the directors from the standing directors, or elected by and from the directors if there is no standing director.”, thus causing the failure of election either by direct vote or by any other method prescribed in the charter of the chairperson from the association, has exceeded the necessary extent of the legislative purpose entertained in the disputed clause. Therefore, the disputed clause limiting internal structure and autonomy on the operation of affairs of a professional association has exceeded the necessary extent and thus has violated the principle of proportionality encompassed in Article 23 and the freedom of association in our Constitution and shall lose validity no later than a year from the date that this interpretation is officially announced. As to the limits found in other laws imposed on certain professional associations with special nature on their election of chairpersons are not covered by this interpretation.
      
    • *Translated by Chia Chieh CHENG.
      
Back Top