The judges of the 7th Division of the Taipei High Administrative Court (hereinafter referred to as Petitioners I) heard the Case No. 99-Su-1230 concerning the Act on Recusal of Public Officials Due to Conflicts of Interest. The facts of the case can be summarized as follows. As a commissioner of the National Communications Commission (NCC), the plaintiff recommended his brother-in-law to work at the NCC as a chauffeur in June 2006. The plaintiff’s brother-in-law was first hired by a human resource outsourcing company, which, in turn, assigned him to work at the NCC as a dispatched laborer. Subsequently, the Executive Yuan referred the matter to the Control Yuan. Upon investigation, the Control Yuan found that the plaintiff had violated Article 7 of the Act on Recusal of Public Officials Due to Conflicts of Interest being in force when the violation was committed (namely, the law enacted and promulgated on July 12, 2000, hereinafter referred to as the Act on Recusal of Public Officials Due to Conflicts of Interest of 2000). The said provision provided that “a public official shall not seek interests for himself or herself or for any related persons by taking advantages of the powers, opportunities, or any methods under his or her official capacity.” On the ground that a related person was benefitted with the non-property interests derived from other personnel measures as defined by Article 4, Paragraph 3 of said Act, the plaintiff was finedTWD1 million in accordance with Article 14, First Sentence of said Act, which provided that ”those in violation of Article 7…shall be subject to an administrative fine of not less than TWD1 million and not more than TWD5 million.” (Hereinafter referred to as Provision-at-Issue I) To contest the fine, the plaintiff filed an administrative appeal, and upon denial, brought an administrative suit. Petitioners I were of the opinion that Provision-at-Issue I, which imposed a minimum administrative fine of TWD1 million for the violation of Article 7 of said Act and was supposed to be applied to the case, was highly suspect of contravening Articles 15 and 23 of the Constitution. For this reason, Petitioners I stayed the court proceedings and petitioned this Court for constitutional review.
The judges of the 3rd Division of the Taipei High Administrative Court (hereinafter referred to as Petitioners II) heard the Case No. 103-Su-1096 concerning the Act on Recusal of Public Officials Due to Conflicts of Interest. The facts of the case can be summarized as follows: The plaintiff had served as chief of the Construction Section of Meishan Township Office, Chiayi County, since March 2005, and since October 1, 2008 he had been qualified as a public official under Article 2 of the Act on Recusal of Public Officials Due to Conflicts of Interest of 2000 for serving as an official responsible for construction management, business registration, and urban planning as defined under Article 2, Paragraph 1, Subparagraph 12 of the Act on Property Declaration by Public Officials. His spouse, having served as a temporary worker at the Construction Section of said township office (with a monthly salary of TWD18,780 during the year 2012) since 1999, was qualified as a related person under Article 3, Subparagraph 1 of the conflict of interests law at issue. During the period from 2009 to 2013, the plaintiff evaluated the job performance of his spouse by himself and gave his spouse Grade As for the fiscal years 2008-2012, thereby allowing his spouse to acquire the benefits of receiving year-end bonuses and contract renewals. As such, the plaintiff violated Articles 6 and 10, Paragraph 1 of the conflict of interests law at issue. The statutes of limitations for the transgressions in respect of the job performance evaluation for the fiscal years 2008 and 2009 had expired. As to the transgressions concerning the job performance appraisals for the fiscal years 2010 through 2012, the Ministry of Justice (MOJ) held that the plaintiff was less culpable in view of the plaintiff’s defense that he was not familiar with the laws and regulations regarding personnel affairs and had no idea that year-end job performance evaluation falls under the category of other personnel measure, and that the plaintiff subsequently reported the matter to the civil ethics section on his own initiative. Therefore, the MOJ reduced the respective administrative fines imposed on the plaintiff for the aforesaid three violations to one third of the minimum statutory administrative fine before imposing a consolidated administrative fine of TWD1 million in accordance with Article 16 of said Act, which provided “those in violation of Article 10, Paragraph 1 shall be subject to an administrative fine of not less than TWD1 million and not more than TWD5 million” (hereinafter referred to as Provision-at-Issue II), the proviso of Article 8 of the Administrative Penalty Act, and Articles 18, Paragraph 3 and 25 thereof. To contest the fine, the plaintiff filed an administrative appeal, and upon denial, brought an administrative suit. Petitioners II were of the opinion that Provision-at-Issue II, which imposed a minimum administrative fine of TWD1 million for the violation of Article 10, Paragraph 1 of said Act and was supposed to be applied to the case, was highly suspect of violating Articles 15 and 23 of the Constitution. Accordingly, Petitioners II stayed the court proceedings and petitioned this Court for constitutional review.
The judges of the 7th Division of the Taipei High Administrative Court (hereinafter referred to as Petitioners III) heard the Case No. 107-Su-31 concerning the Act on Recusal of Public Officials Due to Conflicts of Interest. The facts of the case can be summarized as follows: The plaintiff served as a head of the Cultural Relics Management and Administration Section at the Cultural Assets Management Office of Tainan City. During his tenure, he oversaw the project entitled “Hiring Part-time Student-workers for Taking Inventory of the Tree Valley Cultural Relics,” which was expected to hire four college students as part-time workers who would work for eight hours per day and three days per week at an hourly wage of TWD115 from July 14th to August 15th, 2014. The plaintiff commanded that the staff in charge hire his father-in-law for such part-time position. The MOJ found that by doing so, the plaintiff violated Article 7 of the Act on Recusal of Public Officials Due to Conflicts of Interest of 2000, and fined the plaintiff TWD1 million pursuant to Provision-at-Issue I. To contest the fine, the plaintiff filed an administrative appeal, and upon denial, brought an administrative suit. Petitioners III were of the opinion that the applicable law Provision-at-Issue I, which imposed a minimum administrative fine of TWD1 million without taking into consideration specific circumstances of individual cases, could lead to evidently harsh punishment that fails to comply with the principle of proportionate punishment in a given case. As such, it was highly suspect of contravening the constitutional principle of proportionality, excessively infringing upon the right to property, and thereby violating Articles 7, 15, and 23 of the Constitution. Consequently, Petitioners III stayed the court proceedings and petitioned this Court for constitutional review.
The three aforesaid petitions were admitted as they were in line with the requirements set forth in J.Y. Interpretations Nos. 371, 572, and 590 in respect of the petitions for constitutional review filed by judges. Furthermore, both Provision-at-Issue I and Provision-at-Issue II challenged by these petitions dealt with the minimum administrative fine of TWD1 million provided by the Act on Recusal of Public Officials Due to Conflicts of Interest of 2000, and they were challenged on the same constitutional grounds. In this regard, we consolidated these three petitions and made the Interpretation for reasons set forth below:
Article 15 of the Constitution guarantees the right to property. The restrictions imposed by the State upon the right to property shall be consistent with the principle of proportionality as embodied in Article 23 of the Constitution. The imposition of an administrative fine for breaching an obligation under administrative law touches upon the restriction of the right to property. To comply with the constitutional principle of proportionate punishment, such punishment shall be imposed in proportion to the severity of the breach. While this Court would defer to the legislature as a matter in principle when it comes to the exercise of legislative discretion in setting the range of punishment to be applied to a breach of obligation under administrative law according to its culpability, the legislature is required to set appropriate range of punishment so as to avoid the occurrence of evidently harsh penalty that constitutes excessive punishment in a given case. Provision-at-Issue I and Provision-at-Issue II impose administrative fines for breaches of obligations under administrative law and thereby constitute restrictions of the right to property as guaranteed under Article 15 of the Constitution. As such, such restrictions should be consistent with the principles of proportionality and proportionate punishment.
The legislative purpose of the Act on Recusal of Public Officials Due to Conflicts of Interest of 2000 is to promote incorruptible and competent governance, to purify the political culture, and to effectively deter corruption and illicit transfer of interests (see Article 1 of the Act on Recusal of Public Officials Due to Conflicts of Interest of 2000), so that people can trust the incorruptibility and integrity of public officials as well as the governmental decision-making process. Article 6 of said Act provided, “A public official shall recuse himself or herself as soon as he or she is aware of a conflict of interest.” Article 7 thereof provided, “A public official shall not seek interests for himself or herself or for any related persons by taking advantages of the powers, opportunities, or any methods under his or her official capacity.” Article 10, Paragraph 1 provided, “A public official who is aware that he/she has the obligation to recuse himself/herself shall comply with the following rules:…(ii) other public officials shall cease to perform the official duties in dispute and let them be performed by substitutes.” Provision-at-Issue I and Provision-at-Issue II impose administrative fines on those who violate the foregoing provisions for the sake of preventing a public official from obtaining more advantageous or unfair opportunities or deals for himself/herself or for any related persons by taking advantages of the powers and opportunities under his or her official capacity. The legislative purpose thereof is certainly legitimate, and the means thereof are conducive to the achievement of the aforesaid legislative purpose. Moreover, by authorizing the competent authority to decide on the amount of administrative fine to be imposed within the scope of TWD1 million and TWD5 million, Provision-at-Issue I and Provision-at-Issue II can be said to be necessary means to further those important legislative purposes mentioned above. Although the legislators leave discretion for the competent authority to set fines based on the severity of violations, they failed to take into consideration the extenuating circumstances by laying down a minimum administrative fine of TWD1 million, however. Even after applying the provisions for the commutation of punishment as provided by the Administrative Penalty Act, it remains possible that the penalty imposed would be evidently harsh and amount to excessive punishment (for instance, a TWD1 million administrative fine for a violation resulting from a short-term, one-off, and small-amount procurement of service, or from an illicit transfer of inconsiderable interests). The imposition of such penalty is inconsistent with the principle of proportionate punishment. It is within this scope that said provisions shall cease to apply as of the date of announcement of this Interpretation for violating the principle of proportionality as embodied in Article 23 of the Constitution, as well as the right to property as guaranteed by Article 15 of the Constitution.
Under the Act on Recusal of Public Officials Due to Conflicts of Interest as amended and promulgated on June 13, 2018 (hereinafter referred to as the Act on Recusal of Public Officials Due to Conflicts of Interest of 2018), Provision-at-Issue I has been replaced by Article 17 thereof, and the applicable administrative fine has been adjusted to “not less than TWD300,000 and not more than TWD6 million,” and Provision-at-Issue II has been replaced by Article 16, Paragraph 1 thereof, with the applicable administrative fine being adjusted to “not less than TWD100,000 and not more than TWD2 million.” Both of these revisions were based on the following rationale: “While steep amounts of administrative fines may deter public officials from engaging in illicit transfer of interests, the cases the MOJ adjudicated in the recent years suggest that the minimum baselines for the respective administrative fines should be adjusted downwards to comply with the principle of proportionality as embodied in Article 23 of the Constitution.” (See the Legislative Yuan Gazette 56(107): 512-513) This rationale for amending the law is in line with the holding of this Interpretation. Accordingly, the underlying cases of this Interpretation, along with those pending cases in the administrative relief proceedings as of the date of announcement of this Interpretation that imposed penalties in applying the aforesaid provisions, shall be disposed of by the pertinent courts and authorities in accordance with the holding of this Interpretation and the provisions of the Act on Recusal of Public Officials Due to Conflicts of Interest as amended and promulgated on June 13, 2018.
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*Translated by Vincent C. KUAN