Petitioners of Appendixes 1 to 7 were judges hearing cases of administrative complaints or traffic adjudications against punishments for violations of the Road Traffic Management and Penalty Act (hereafter the “Road Traffic Act”), and of violations of the Employment Service Act in their respective courts. For the original cases, final court decisions and provisions to be interpreted of each Petitioner’s application for constitutional interpretation or uniform interpretation, please refer to the attached table, which also includes such information regarding other petitioners mentioned below. In all of these cases, each offender was granted a disposition of deferred prosecution by the prosecutor, and ordered to perform a duty specified in Article 253-2, Paragraph 1, Subparagraph 4 or 5 of the Code of Criminal Procedure (hereafter “the Burden to be Performed”). On top of such obligations, they were further ordered to pay the penalties, after deducting the amount of Burden to be Performed, by the competent authorities according to either of the following two provisions: (1) the provision of Article 26, Paragraph 2 of the Administrative Penalty Act (hereafter the “First Provision at Issue”) regarding a disposition of deferred prosecution conditioned on a Burden to be Performed, issued by a prosecutor to a defendant (or a criminal suspect; applicable when appropriate hereinafter) or (2) the provision of Article 45, Paragraph 3 of the Administrative Penalty Act (hereafter the “Second Provision at Issue”) in reference to Article 26, Paragraphs 3 and 4 of the same Act. The aforesaid Petitioners claimed the First and Second Provisions at Issue violated the non bis in idem principle (“the right not to be punished twice for the same conduct”) and the doctrine of legitimate expectation. Holding reasonably firm belief that both Provisions at Issue were in conflict with the Constitution, the petitioners petitioned this Court for constitutional interpretation, after suspending the proceedings sua sponte. We found these petitions to be complying with the requirements for the judge-initiated petition for constitutional interpretation, as set forth in our J.Y. Interpretations Nos. 371, 572 and 590, and granted review.
Petitioner Yu-Zhen He of Case No. 8 in the attached table, regarding her case of administrative complaint against violation of the Road Traffic Act, and Petitioners Chieh-Chiang Lo, Yu-Hua Pang and Shao-Yeh Huang of Case No. 9 in the attached table, regarding their case involving the Private School Act, were ordered by the competent authorities to pay the penalties after deducting the amount of the burdens to be performed, after being granted by the prosecutor a disposition of deferred prosecution conditioned the burdens to be performed. The Petitioners brought administrative complaints and lawsuits to challenge said orders, and all failed. They claimed the laws applied by the court of last resort in the final decisions violated the Constitution, and petitioned for constitutional interpretation. We found their petitions regarding the First and Second Provisions at Issue to be complying with the requirements set forth in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act (hereafter the “CCPA”), and granted review.
Petitioner Li-Er Huang of Case No. 10 in the attached table and Petitioner Yu-Feng Huang of Case No. 11 in the attached table, regarding their respective cases of individual income tax, and Petitioner Shi-Wei Lin of Case No. 12 and Petitioner Wan-Hsing Hsu of Case No. 13, regarding their respective cases involving the Income Tax Act, were punished by the competent authorities according to Article 26, Paragraph 2 of the Administrative Penalty Act of February 5, 2006, citing the Ministry of Finance Letter Tai-Tsai-Shui-09600090440 of March 6, 2007 (hereafter the “First Letter at Issue”), even after the prosecutor had given them the dispositions of conditional deferred prosecution and ordered them to pay the Burdens to be Performed. The Petitioners brought administrative complaints and lawsuits to challenge the said orders, and all failed. They claimed the laws applied by the court of last resort in the final decisions violated the Constitution, and petitioned for constitutional interpretation. We found their petitions regarding the First Letter at Issue to be complying with the requirements set forth in Article 5, Paragraph 1, Subparagraph 2 of the CCPA, and granted review.
Petitioner Shi-Wei Lin of Case No. 12 in the attached table and Petitioner Wan-Hsing Hsu of Case No. 13 in the attached table, regarding their respective cases involving the Income Tax Act, claimed that the opinions of the final court judgment of last resort, on whether Article 26, Paragraph 2 of the Administrative Penalty Act (taking effect on February 5, 2006) shall be applied to a final deferred prosecution, were different from those of the Taiwan High Court in its 2008 Chiao-Kang-607 Ruling (hereafter the “First Ruling at Issue”) on a traffic case, and in its 2009 Chiao-Kang-2209 (hereafter the “Second Ruling at Issue”) on a criminal case. Both rulings applied the same Act in the said final judgment. Therefore, they petitioned for uniform interpretation. We found their petitions to have met the requirements set forth in Article 7, Paragraph 1, Subparagraph 2 of the CCPA, and granted review.
All of the above Petitions involve the same issue whether the competent authorities may further impose penalties on breach of administrative law obligations, after a prosecutor conferred a disposition of conditional deferred prosecution and mandated a defendant to pay the Burden to be Performed. All cases share a commonality. We therefore consolidate all of them and make this Interpretation with the following reasons:
I. The First Provision at Issue does not violate the principle of proportionality and does not infringe the right to property.
Article 15 of the Constitution provides that the people’s right to property shall be protected. Nonetheless, the state may impose restrictions by law on people’s right to property. Such restrictions must be necessary for maintaining social order or for advancing public interests, and do not go beyond the scope of the principle of proportionality under Article 23 of the Constitution (see our J.Y. Interpretations Nos. 596 and 672.)
Article 26, Paragraphs 1 and 2 of the Administrative Penalty Act provide: “(Paragraph 1) If an action concurrently violates the criminal law and the obligation provision of administrative law, it shall be punished by the criminal law. … (Paragraph 2) If an offense described in the preceding Paragraph is granted a final disposition of non-prosecution or deferred prosecution, or a final judgement of acquittal, exemption from prosecution, lack of jurisdiction, not to be put on trial, exemption from protective measures, exemption from punishment, or suspended sentences, such offense may still be punished for breach of administrative law obligations.” The part regarding the disposition of deferred prosecution in Paragraph 2 (i.e., the First Provision at Issue) was amended in 2011 to settle the controversy in practice whether this Paragraph shall be applied to a disposition of deferred prosecution (see Legislative Yuan Gazette Vol. 100, No. 70, page 185.).
The system of deferred prosecution was created to screen cases, as a complementary measure for the adversarial criminal procedure system. It also serves the purposes of compensating the victim’s loss, functioning as a mechanism of individual deterrence, and encouraging the self-correction and social rehabilitation of defendants (see Legislative Yuan Gazette, Vol. 91, No. 10, pages 943 & 948f.). Therefore, a disposition of deferred prosecution, in nature, is for a prosecutor, authorized by statutes, to conclude an investigation. It does not function to reaffirm the existence of the power to punish. Instead, it is a procedural measure to prevent the exercise of the power to punish. From this perspective, a disposition of deferred prosecution is a decision not to prosecute a defendant. In this regard, the remedial options for a complainant against such a disposition are the motion for reconsideration and the motion for trial of the case (see Articles 256-1 and 258-1 of the Code of Criminal Procedure). So it is in fact an expedient disposition of conditional non-prosecution.
Furthermore, according to Article 253-2, Paragraph 1 of the Code of Criminal Procedure, a prosecutor, when granting a disposition of deferred prosecution, may also require the defendant to comply with or to perform, within a specific period of time, the item(s) specified in the respective subparagraphs. Subparagraph 4 therein provides that [the defendant shall] pay a specific amount of money to the Treasury, a designated non-profit organization or a local government (to the Treasury only, after amendment on June 4, 2014) within a specific period of time; Subparagraph 5 provides that [the defendant shall] perform a specific number of hours of community service to a designated governmental agency, a governmental organization, an incorporated administrative agency, a neighboring community or any other non-profit organization or association (the contents of the preceding two subparagraphs being the Burdens to be Performed).
The Burden to be Performed is not a type of criminal punishments specified in the criminal law. It is a duty to be performed by a defendant, as required by a prosecutor with the defendant’s consent and within the prosecutor’s capacity to conclude an investigation, after balancing the facts of individual cases and the safeguarding of public interests. It serves the purposes such as functioning as a mechanism of specific deterrence and encouraging the self-correction and social rehabilitation of the defendant. After all, by nature, it is not a criminal punishment imposed by an adjudicating authority in compliance with the criminal procedures. However, by the Burden to be Performed, a defendant is subject to an obligation to make a certain monetary payment or provide labor service. Therefore, his or her property right or personal freedom is restricted. On such people, this Burden constitutes a restriction on their basic rights with unfavorable effects similar to punishments. Therefore, the state, when imposing a penalty under the administrative law on the same action of the people, after imposing a Burden to be Performed, the entirety of the unfavorable effects on the basic rights of the people may not be excessive and must comply with the principle of proportionality.
The First Provision at Issue authorizes [a competent authority] to impose a penalty for breach of administrative law obligations, even after a defendant is granted a disposition of conditional deferred prosecution with a Burden to be Performed. Such authorization is based on the legislature’s considerations that the purpose and nature of a Burden to be Performed are different from those of a criminal punishment. Therefore, without the imposition of an administrative penalty, the level of culpability on a wrongdoing subject to the administrative penalty would be insufficient. In order to restore the legal order and to promote public interests, the further imposition of administrative penalty is warranted with such legitimate purposes. The measures to impose an administrative penalty, on top of the Burden to be Performed, are rationally related to the achievement of its purposes, since the entirety of its unfavorable effects on the people is not obviously out-of-proportion and not excessive. So it does not violate the principle of proportionality or trigger the question of bis in idem. Furthermore, in order to alleviate the overall negative effects on people’s property so as to prevent people from being overburdened, the legislature amended Article 26, Paragraphs 3 and 4 of the Administrative Penalty Act in 2011 to allow the Burden to be Performed to be deducted from an administrative penalty. Hence the First Provision at Issue does not violate the spirit of the people’s right to property, as protected by Article 15 of the Constitution.
To avoid a defendant’s misunderstanding about the legal effects of a Burden to be Performed in a disposition of deferred prosecution, when a prosecutor plans to confer conditional disposition of deferred prosecution with the Burden to be Performed and asks for the defendant’s consent, the prosecutor shall explain to the defendant that a competent administrative agency may still punish the same action according to law if it constitutes a breach of administrative law obligations. It is hereby pointed out.
II. The Second Provision at Issue does not violate the Ex Post Facto principle or the doctrine of legitimate expectation.
The principle of Rechtsstaat (Rule of Law) is a fundamental principle of the Constitution. It prioritizes the protection of people’s rights, the stability of legal order, and the compliance with the doctrine of legitimate expectation. Therefore, whenever there is a change in statute, unless the statute specifically requires a retroactive application of such a change, the change shall in principle take effect prospectively from the promulgation date (or the effective date) (see our J.Y. Interpretations Nos. 574 and No. 629). Also, if the law specifically requires a retroactive application and such a retroactive application will benefit the people, it will not violate the doctrine of legitimate expectation. Nor will it be prohibited by the Ex Post Facto principle.
Article 45, Paragraph 3 of the Administrative Penalty Act prescribes: “the stipulations of Article 26, Paragraphs 3 to 5 of this Act, as amended on November 8, 2011, also apply to an action which took place before the amendment, was not only in breach of an administrative law obligation but also concurrently violated the criminal law, for which violation a disposition of deferred prosecution has been rendered but an administrative penalty is yet to be imposed….” The Second Provision at Issue requires a retroactive application of Article 26, Paragraphs 3 to 5 of the Administrative Penalty Act, as amended on November 8, 2011. Therefore, the amendment applies also to an offense that took place before the 2011 Amendment of the Act but is yet to be punished. This is a statutory provision specifically requiring a retroactive application. Further, the stipulations in Article 26, Paragraphs 3 and 4 of the Administrative Penalty Act that allows a Burden to be Performed to be deducted from a penalty is to lessen the disadvantage on people’s property and thus is hereby regarded as a new rule beneficial to the actor. There is surely no violation of the Ex Post Facto principle or the doctrine of legitimate expectation.
Some Petitioners argue that a certain number of district courts have been expressing consistent opinions within their respective jurisdictions that no administrative penalty may be imposed on top of a disposition of conditional deferred prosecution. Such opinions shall suffice to constitute the basis of expectation to be relied on by the people in their respective jurisdiction. However, even if the opinions of courts in some jurisdictions appear to be consistent regarding the application of a specific statute, such opinions are not binding on other judges, according to the principle of judge’s decisional independence. Therefore, this can hardly be the basis of expectation to be relied on for claiming legitimate expectation. It is hereby noted as well.
III. The First Letter at Issue does not violate the Principle of Gesetzesvorbehalt (Statutory Reservation).
The First Letter at Issue provides: “Subject: When a single action is not only in breach of tax law obligations but also concurrently violates the criminal law, for which violation a disposition of deferred prosecution has been conferred by a prosecutor according to Article 253-1 of the Criminal Procedure Code, may the taxation authority still impose an administrative penalty on such action for its breach of the tax law obligations? Explanation: 2. On this controversy, the Ministry of Justice has been consulted and responded with Ministry of Justice Letter Fa-Lu-Chueh-0960005671 of February 16, 2007 (hereafter as Second Letter at Issue). It holds: ‘a deferred prosecution is a disposition of conditional non-prosecution, namely, a type of non-prosecution. This is evident in the stipulation of Article 256 of the Criminal Procedure Code. Since there is no prosecution, it should be regarded as non-prosecution. The instruction given to and the duty imposed on a defendant by a prosecutor according to Article 253-2, Paragraph 1, Subparagraphs 4 and 5 of the Criminal Procedure Code are a type of special measure and not a criminal punishment. Therefore, a criminal case shall be considered non-prosecuted and final, after a prosecutor confers a final disposition of deferred prosecution. According to Article 26, Paragraph 2 of the Administrative Penalty Act, such offense may be punished as a breach of the administrative law obligations.’ On the part regarding a disposition of deferred prosecution where a prosecutor requires the defendant to perform the burdens specified in Article 253-2, Paragraph 1, Subparagraphs 4 and 5 of the Code of Criminal Procedure, a disposition of deferred prosecution is in fact an expedient disposition of conditional non-prosecution. The Burden to be Performed carries unfavorable effects similar to punishments, but it is not a criminal punishment imposed by an adjudicating authority according to the substantive criminal laws in compliance with the criminal procedures. Without the imposition of an administrative penalty, the level of culpability on a wrongdoing subject to the administrative penalty would be insufficient. In order to restore the legal order and to promote public interests, the further imposition of administrative penalty is warranted so as to fully evaluate the entire action of an actor. Thus the above Letter is an explanation given by the taxation authority, based on its statutory authority and after consulting the Ministry of Justice, on the application guideline of Article 26, Paragraph 2 of the Administrative Penalty Act, which took effect on February 5, 2006. Such explanation is compatible with the general doctrines of statutory construction, and does not create restrictions or burdens beyond the statutory scheme. It does not violate the Principle of Gesetzesvorbehalt (Statutory Reservation).
IV. By interpretation, Article 26, Paragraph 2 of the Administrative Penalty Act, which took effect on February 5, 2006, includes a disposition of deferred prosecution.
On the part of Uniform Interpretation: Article 26, Paragraph 2 of the Administrative Penalty Act, which took effect on February 5, 2006, provides: “If an offense described in the preceding Paragraph is granted a final disposition of non-prosecution, or a final judgement of acquittal, exemption from prosecution, lack of jurisdiction, not to be put on trial, such offense may still be punished for breach of administrative law obligations.” It does not explicitly indicate whether this provision will apply to a “final disposition of deferred prosecution”. The following court decisions did have different opinions on this issue: (I) the final judgements by the courts of last resort listed in Tables 12 and 13 held that the remedial option against a disposition of deferred prosecution be a motion for reconsideration, which also applies to a disposition of non-prosecution. Both dispositions prohibit a case to be prosecuted twice. It is evident that the nature of a disposition of deferred prosecution is similar to that of a disposition of conditional non-prosecution. Without the defendant’s consent, the prosecution cannot enforce a Burden to be Performed. So a Burden to be Performed shall not be considered as criminal punishment. Therefore, a final disposition of deferred prosecution shall be regarded as a final disposition of non-prosecution and the offense may be punished as a breach of the administrative law obligations; (II) the First and Second Rulings at Issue, on the other hand, held that a disposition of deferred prosecution is basically a withheld prosecution believing that the defendant is guilty. It is different from a disposition of non-prosecution, which is made for lacking sufficient evidences of guilt. These two dispositions are obviously different. A Burden to be Performed is a punishment based on the criminal law. It infringes [the people’s] property and imposes a certain duty [on the people]. It, in fact, has the effect of a substantive punishment. Therefore, Article 26, Paragraph 2 of the Administrative Penalty Act, which took effect on February 5, 2006, shall not apply to a disposition of deferred prosecution.
This Court finds that, although Article 26, Paragraph 2 of the Administrative Penalty Act, which took effect on February 5, 2006, did not explicitly include a “final disposition of deferred prosecution” in its provision, a Burden to be Performed only carries some unfavorable effects similar to punishments. It, in itself, is not a criminal punishment. Hence, it is in fact an expedient disposition of conditional non-prosecution. Therefore, Article 26, Paragraph 2 of the Administrative Penalty Act, which took effect on February 5, 2006, by interpretation, may be applied to an action being granted a final disposition of deferred prosecution and punish such action for breach of the administrative law obligations.
V. Petitions Dismissed
On the petitions, filed by the Petitioners listed in Tables 1, 3 and 4, for interpretation regarding the final judgements of suspended sentences in Article 26, Paragraph 2 of the Administrative Penalty Act, this Court finds that the original cases of these Petitions are cases of drunk driving, granted dispositions of deferred prosecution and further punished by administrative penalties. They did not involve any question of suspended sentences. On the petitions, filed by the Petitioners listed in Tables 1 to 7, for interpretation of Article 45, Paragraph 3 of the Administrative Penalty Act in its reference to Article 26, Paragraph 5 of the same Act, this Court finds that the original cases of these Petitions did not involve any final disposition of deferred prosecution or any final judgement of suspended sentences cancelled later. So the said provisions were not the applicable laws to be applied by the Petitioner in their adjudication of the original cases. These petitions do not meet the requirements as set forth in our J.Y. Interpretations Nos. 371, 572 and 590. On the petition, filed by the Petitioner listed in Table 1, for a supplementary interpretation to our J.Y. Interpretation No. 371 to the effect that the full texts of all petitions filed by judges shall be made public and any other judge shall be allowed to submit joint-petitions or comments in order to strengthen the system of judge-initiated petitions for constitutional interpretation, this Court finds that the wording of J.Y. Interpretation No. 371 is not ambiguous, nor does it miss any reasoning. There is no need to render a supplementary interpretation. Therefore, the Petitions in this part do not meet the requirements for judge’s petition for constitutional interpretation, as specified in J.Y. Interpretation Nos. 371, 572 and 590, and are hereby dismissed.
On the petitions, filed by the Petitioners listed in Tables 3 to 6, challenging the constitutionality of Article 35, Paragraph 8 of the Road Traffic Act, this Court finds that the original cases of these Petitions were all cases of drunk driving granted conditional dispositions of deferred prosecution with a Burden to be Performed by a prosecutor. They do not involve any fine sentenced by a final judgment according to Paragraph 8 of the same Article: “[should the driver …] receives a fine by a final judgement and the amount of fine is lower than the minimum administrative penalty as provided for by Article 92, Paragraph 4 of this Act, he/she shall still pay the difference to match the minimum administrative penalty”. So Article 35, Paragraph 8 of the Road Traffic Act is not the applicable law to be applied by the Petitioners in the adjudication of the respective original cases. On the petitions, filed by the Petitioners listed in Tables 3 to 7 challenging the constitutionality of Article 26, Paragraphs 3 and 4 of the Administrative Penalty Act, which took effect on November 23, 2011, this Court finds that such Petitions did not present concrete reasons to illustrate their firm belief the statute in question is objectively unconstitutional. Therefore, the Petitions in this part do not meet the requirements for judge’s petition for constitutional interpretation, as specified in J.Y. Interpretation Nos. 371, 572 and 590, and are hereby dismissed..
On the petition, filed by the Petitioner listed in Table 8, challenging the constitutionality of Article 26 of the Administrative Penalty Act and the remaining provisions of Article 45, Paragraph 3 of the same Act excluding the First and Second Provisions at Issue, the petition, filed by the Petitioner listed in Table 10, challenging the constitutionality of Article 17, Paragraph 1, Subparagraph 2, Clause 2, Subclause 1 and Article 110, Paragraph 1 of the Income Tax Act, and the petition, filed by the Petitioner listed in Table 11, challenging the constitutionality of the Ministry of Finance Order Tai-Tsai-Shui-0920452464 of June 3, 2003 (hereafter as the “Order at Issue”), this Court finds that none of them presented concrete reasons on how these preceding regulations violate the Constitution objectively. Nor do they explain how the constitutional rights are infringed thereby. On the petition, filed by the Petitioner listed in Tables 12 and 13, challenging the constitutionality of the Second Letter at Issue, this Court finds that this letter was a response from the Ministry of Justice to the legal question raised by the Ministry of Finance. It is neither a statute nor an order. It is not permissible to file a petition for constitutional interpretation, by citing such Letter. Also, the Petitioner listed in Table 12 filed a petition and challenged the constitutionality of the Supreme Administrative Court’s First Resolution of the Joint Meeting of Chief Judges and Judges (done in January 2013) (hereafter as the “Resolution at Issue”). In this petition, the Petitioner claimed that, in spite that Article 48-3 of the Tax Collection Act was a special law to the Administrative Penalty Act, the Resolution at Issue wrongfully gave the Administrative Penalty Act, being the general law, the precedence over the special law, and applied it. Such application violated the Vorrang des Gesetzes Principle (the Principle of the Superior Order of Statutes), and therefor raised a doubt that Article 172 of the Constitution was violated. This Court finds that the arguments in their Petitions only raised disagreements on the application of statutes, and did not present objective and concrete reasons on how the Resolution at Issue violated the Constitution. Therefore, none of the above Petitions meets the requirements of Article 5, Paragraph 1, Subparagraph 2 of the CCPA. They are hereby dismissed according to Paragraph 3 of the same Article.
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* Translated by Hsiu-Yu FAN