Judges of the Fourth Division of the Taipei High Administrative Court (hereinafter referred to as Petitioner One), heard cases 105-Su-1685, -1720, and -1734 (2016), concerning The Act Governing the Settlement of Ill-gotten Properties by Political Parties and Their Affiliate Organizations (hereinafter referred to as case concerning the Act). According to Article 2 (hereinafter referred to as Provision One) of The Act Governing the Settlement of Ill-gotten Properties by Political Parties and Their Affiliate Organizations (hereinafter referred to as the Act), CIPAS was established. CIPAS, in accordance with Article 8, Paragraph 2 of the Act (hereinafter referred to as Provision Two), actively investigated whether Hsinyu-Tai Corporation (hereinafter referred to as Hsinyu-Tai) and Central Investment Corporation (hereinafter referred to as Central Investment) are affiliated organizations of the Chinese Nationalist Party (hereinafter referred to as the KMT), and conducted a hearing in accordance with Article 14 of the Act (hereinafter referred to as Provision Three). Based on the Disposition No. 105001 of November 2, 2016, by CIPAS (hereinafter referred to as the Disposition One), it was determined that the equities of the two companies are held entirely by the KMT, which is a political party defined in Article 4, Paragraph 1 of the Act (hereinafter referred to as Provision Four), and the KMT is able to exert direct or indirect control over important matters regarding personnel, finance, and operation of the two companies, thus meeting the definition of affiliated organization of Article 4, Paragraph 2 (hereinafter referred to as Provision Five). Hsinyu-Tai, Central Investment, and the KMT, as the parties subject to the Disposition One, all disagreed with the disposition and filed administrative litigations separately following Article 16 of the Act, requesting the revocation of the Disposition One. Petitioner One argued that the application of Provision One to Five is in conflict with important constitutional principles such as the Verfassungsvorbehalt principle (the principle of constitutional reservation), the principle of separation of powers, the principle of equality, the doctrine of void-for-vagueness , and the proportionality test, thus raising doubts about their compliance with Articles 1, 2, 7, 14, 15, and 23 of the Constitution. Therefore, the proceeding was stayed by ruling, and a petition for constitutional interpretation was made to this Court.
Judges of the Sixth Division of the Taipei High Administrative Court (hereinafter referred to as Petitioner Two), heard the case 107-Su-260 (2018) concerning the Act. The CIPAS, established in accordance with Provision One, actively conducted investigations and hearings to determine whether the National Women's League of the Republic of China (hereinafter referred to as Women's League) is an affiliated organization of the KMT. Based on the Disposition No. 107001 of February 1, 2018, by CIPAS (hereinafter referred to as the Disposition Two), it was determined that the Women's League had been under substantial control of the KMT in terms of personnel, finance, and operation, and it had not been detached from the substantial control of the KMT through a transaction at a fair price, thus meeting the definition of an affiliated organization of the Second Sentence of Provision Five. The Women's League, as the party subject to the Disposition Two, disagreed with the disposition and filed an administrative litigation following Article 16 of the Act, requesting the revocation of the Disposition Two. Petitioner Two argued that the application of Provision One to Three and the Second Sentence of Provision Five are in violation of the constitutional principles of separation of powers, doctrine of void-for-vagueness , principle of equality, proportionality test, thus raising doubts about their compliance with Articles 1, 2, 7, 14, 15, and 23 of the Constitution. Therefore, the proceeding was stayed by ruling, and a petition for constitutional interpretation was made to this Court.
Judges of the Sixth Division of the Taipei High Administrative Court (members are different from Petitioner Two) (hereinafter referred to as Petitioner Three), heard the case 107-Su-1053 (2018) concerning the Act. CIPAS, established in accordance with Provision One, actively conducted investigations and hearings to determine whether the Minzu Foundation, Minquan Foundation and the National Development Foundation are affiliated organizations of the KMT. Based on the Disposition No. 107006 of June 29, 2018, by the CIPAS (hereinafter referred to as the Disposition Three), it was determined that all three foundations exist independently, and are juristic persons substantially controlled by the KMT in terms of personnel and finance, thus meeting the definition of affiliated organizations of the First Sentence of Provision Five. The Minzu Foundation, the Minquan Foundation and the National Development Foundation, as the parties subject to the Disposition Three, disagreed with the disposition and filed an administrative litigation following Article 16 of the Act, requesting the revocation of the Disposition Three. Petitioner Three argues that the application of Provision One to Four in question and the First Sentence of Provision Five, in violation of the Verfassungsvorbehalt principle, the principle of separation of powers, doctrine of void-for-vagueness , principle of equality and proportionality test, thus raising doubts about their compliance with Articles 1, 2, 7, 14, 15, and 23 of the Constitution. Therefore, the proceeding was stayed by ruling, and a petition for constitutional interpretation was made to this Court.
The proceedings of the three aforementioned cases have all been stayed by the courts. The petitioners have petitioned to this Court for constitutional interpretation based on convictions, grounded on objective reasons, that the laws are unconstitutional. Upon examination, it was found that they meet the requirements for judges' applications for constitutional interpretation as set forth in J.Y. Interpretations Nos. 371, 572, and 590, therefore should be heard. As the constitutional doubts raised in the petitions are the same, they were consolidated for a joint hearing.
In accordance with Article 13, Paragraph 1 of the Constitutional Court Procedure Act, this Court notified the petitioners, relevant agencies (CIPAS) to appoint representatives and attorneys to attend an oral argument hearing on the morning of June 30, 2020. Expert witnesses were also invited. Furthermore, upon the request of the related parties, including Hsinyu-Tai, Central Investment, the KMT, the Women's League, the Minzu Foundation, the Minquan Foundation, and the National Development Foundation, they were invited to state their opinions to this court.
The petitioners were not present at the oral argument hearing. Based on the constitutional interpretation petitions and supplementary reasons submitted by them, their claims that Provision One to Five are unconstitutional are summarized as follows:
(1) The guarantee of the existence and continuity of political parties is a matter reserved by the Constitution. It is apparent that regulating it solely through the Act, which has the status of ordinary statute, violates the Verfassungsvorbehalt principle.
(2) According to Provision One to Three, the establishment of CIPAS and the replacement of judicial procedures with a hearing process by CIPAS for determining changes of property rights not only bestowed powers upon an organ, which is not functionally the most appropriate, but also infringe upon the core of judicial power, violating the principle of separation of powers.
(3) Among the 10 political parties defined under Provision Four, the KMT is the most likely to possess the properties acquired since August 15, 1945, as defined in Article 5 of the Act. Therefore, Provision Four constitutes a bill of attainder, violating the principle of equality.
(4) The concept of "substantial control" as referred to in Provision Five is difficult for those subject to it to understand and foresee; furthermore, by reason of "preventing the violation of political party equality through evasion," Provision Five, which includes both affiliated organizations in the past that were already separated from substantive control in the Second Sentence and presently affiliated organizations regulated in the First Sentence, violates the doctrine of void-for-vagueness , principle of equality, proportionality test, and non-retroactivity of the law.
The relevant agency, the CIPAS, argues that Provision One to Five are not unconstitutional. Their claims are summarized as follows:
(1) The disposal of political parties’ and their affiliated organizations' ill-gotten assets is not specifically regulated in the Constitution and does not fall under the realm of Verfassungsvorbehalt. Furthermore, the Act only deals with ill-gotten assets and does not restrict or deprive the existence or continuity of political parties. Therefore, the Act does not violate the Verfassungsvorbehalt principle.
(2) The legislature, based on its legislative function, has the authority to exclude the application of the Basic Code Governing Central Administrative Agencies Organizations (hereinafter referred to as the "Organization Code") through the enactment of special laws when necessary. Therefore, Provision One does not violate Article 3, Paragraphs 3 and 4 of the Additional Articles of the Constitution.
(3) The bounds of judicial power is different from the monopoly of judicial power, and judicial power is passive in nature. Provision One to Three authorize the CIPAS to make dispositions after investigations, which is in line with the requirement of bestowing power to the most appropriate organ in terms of its function, and does not infringe upon the core of judicial power. Therefore, it does not violate the principle of separation of powers.
(4) Provision Four define the legal elements in an abstract manner, which by nature does not constitute a bill of attainder. Even if it were a bill of attainder, it would have served to settle the ill-gotten assets by political parties, restore the previous order of property ownership, implement transitional justice, and promote fair competition among political parties. Therefore, it does not violate the principle of equality of Article 7 of the Constitution.
(5) The concept of "substantial control" in Provision Five , such as "personnel, finance, or operation," is universally present in various domains of laws of this state and is not difficult for those being regulated to understand and foresee. It does not violate the doctrine of void-for-vagueness . Regarding the Second Sentence of the same provision, these organizations are being defined as affiliated because they have severed substantive control "without fair consideration," and they still possess ill-gotten properties. Therefore, it does not violate the proportionality test or the non-retroactivity principle.
Considering the arguments presented in the entire oral argument, this Court has reached the interpretation with the following reasons:
A. The Legal Background
After World War II, Taiwan came under the legal system of the Republic of China (ROC), and at the same time also entered the system of Provisional Constitution for the Period of Political Tutelage (in effect since June 1, 1931. Hereinafter referred to as Provisional Constitution). The Provisional Constitution explicitly granted the KMT, by representing the National Assembly, the governing power, with a position of guiding and supervising the government (Articles 30, 31, 32, 72, and 85 of the Provisional Constitution), thus creating a party-state system.
On December 25, 1947, the Constitution of the Republic of China was implemented, marking the end of the period of Political Tutelage, and entering the era of constitutionalism. However, the first National Assembly, in accordance with constitutional amendment procedure of Article 174, Paragraph 1 of the Constitution, enacted and promulgated the Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion (hereinafter referred to as the Temporary Provisions) on May 10, 1948. Subsequently, the first President, in accordance with the Temporary Provisions, issued a nationwide martial law (excluding Taiwan) on December 10, 1948. Then, the Taiwan Provincial Government and the Taiwan Provincial Garrison General Headquarters issued martial law in Taiwan province starting from May 20, 1949. During the Period of National Mobilization for Suppression of Communist Rebellion, the powers of the President were significantly expanded due to the Temporary Provisions, and the first session of the national representatives continued to exercise its authority without new election. Furthermore, the Presidents also held the position of Leader or Chairperson of the KMT, resulting in the KMT effectively maintaining an absolute dominant position in the exercise of state power. As a result, the party-state system, which was originally intended to end with the implementation of the Constitution, continued to exist in practice.
As mentioned earlier, this state was under a state of emergency during the Period of National Mobilization for Suppression of Communist Rebellion and martial law. It was not until July 14, 1987 that the President lifted the martial law in Taiwan Area (excluding Kinmen and Matsu) starting from July 15 of the same year. Subsequently, the Temporary Session of the first National Assembly passed the Additional Articles of the Constitution on April 22, 1991 through third reading and resolved to abolish the Temporary Provisions. On April 30 of the same year, the President issued an order declaring the termination of the Period of Mobilization for Suppression of Communist Rebellion on May 1. Thus, the state system began to gradually return to the constitutional order of liberal democracy. In order to establish the values of liberal democracy, and the fundamental rights protection embodied in the Constitution, the legislators deemed it necessary to reassess and rectify the past violations of the constitutional order of liberal democracy, and the serious infringement of fundamental rights during the extraordinary period after the democratic transition. Considering that political parties can influence the formation and operation of state power, they should abide by the constitutional order of liberal democracy, seek national interests, and not exploit their influence to seek improper interests for their own party or third parties. The assets obtained by political parties through their access to power or state authority should be restored, and a fair competitive environment for political parties should be established to implement transitional justice. However, it may be difficult to request political parties to return their assets in accordance with the previous legal provisions before the enactment of the Act, as some cases may have exceeded the statute of limitations or preemption, and there may be concerns about safeguarding the rights and interests acquired by third parties. Therefore, the legislators adopted a special legislative approach to enact the Act in order to regulate the settlement of political parties' ill-gotten properties (see legislative reasoning of Article 1 of the Act).
B. Fundamental Rights Concerned, Constitutional Protection of Party Politics and Review Standards
Article 15 of the Constitution stipulates that the people's property rights should be protected, aiming to ensure individuals' freedom to use, benefit from, and dispose of their property, and to be free from infringement by authorities or third parties (Referring to J.Y. Interpretations Nos. 400, 709, 732, and 747). Additionally, the freedom of association of Article 14 of the Constitution not only guarantees people's freedom to choose the purpose of their association, to gather and participate in or refrain from participating in association-related matters but also ensures that associations formed by individuals have the freedom to establish, exist, and carry out activities related to association, free from unlawful restrictions (Referring to J.Y. Interpretations Nos. 479 and 724). The use, benefits, and disposal of the property of associations are protected by Article 15 of the Constitution regarding property rights and are closely related to the existence, operation, and development of associations, which are also protected by Article 14 of the Constitution concerning freedom of association.
Political parties are political associations of the people. Based on the protection of freedom of association under Article 14 of the Constitution, political parties are not subject to arbitrary interference by the state in their existence, internal organization, operations, and external activities. The Constitution establishes the principle of a democratic state, with the people as the source of all state power (referring to Articles 1 and 2 of the Constitution). The people, through the right to participate in politics, actively participate in the operation of state power, providing a democratic and legitimate basis for the functioning of state power. Political parties assist the people in forming political opinions and, through elections, participate in the construction of state organs and public officials, transform the aggregated individual will of the citizens into the will of the state, directly or indirectly influencing the operation of the state. They play a significant and necessary role in democratic political processes. As political parties can influence the formation or operation of state power, they must adhere to the constitutional order of liberal democracy and pursue the interests of the state, and should not exploit their influence to seek improper benefits for itself or third parties. Political parties and other associations have different meanings for individuals, society, and democratic constitutional systems, and they are subject to varying degrees of protection and limitations under the Constitution.
Political parties are crucial to the functioning of a democratic system and is at the core of the constitutional principle of democracy. The state should strive to establish and ensure an environment of rule of law that allows for the free formation, development, and fair participation of multiple political parties in elections. This includes domains such as electoral systems and party finance, enabling parties to engage in democratic politics, compete fairly, and strive for opportunities to govern while seeking the well-being of all people. Furthermore, constitutional principle of democracy and the right to equality protect the equal opportunities for political parties, the purpose of which is to ensure the sound operation of party politics and fair competition among parties. Apart from prohibiting the exercise of state power with unjustifiable disparate treatment, it also mandates that political parties should have the chance to participate in elections on a level playing field within democratic competition, and enjoy equal access to various public resources. Factors that could adversely affect fair competition among parties should be eliminated.
Especially, party finance not only affects the competitive resources of political parties, impacts whether parties can operate properly and fulfill their mission of assisting with the formation of political opinions, but also involves the construction of a fair competitive mechanism among parties. To meet the requirements of modern democratic state governed by the rule of law, which requires the ensuring of equal opportunities for political parties, the state should appropriately regulate party finance. As a result, compared to other social groups, the state may impose more restrictions or grant privileges (such as party subsidies) on the property rights of political parties.
Before or after the termination of extraordinary periods, i.e. Period of National Mobilization for Suppression of Communist Rebellion and martial law, political parties, due to the party-state system at that time, which have acquired assets from the state or the people through actions that either violated the laws at the time, or were legally valid but substantively contradicted the mandate of constitutional order of liberal democracy, accumulated party assets and created an imbalance in the equal opportunities for competition between parties. Based on its obligation, stemming from the constitutional principle of democracy, to protect equal opportunities for political parties and to establish the mechanism for fair competition among parties, the state should take measures to restore or rectify the situation and uphold the values of a constitutional order of liberal democracy as highlighted in the Constitution. However, the content of such measures must still comply with the principles of Rechtsstaat (state governed by the rule of law), which mandates that all exercises of state power must adhere to the principle of separation of powers, protection of fundamental rights, principle of proportionality, doctrine of void-for-vagueness , and judicial remedies. If the deprivation or restriction of property is involved, in addition to complying with the principle of Gesetzesvorbehalt (the principle of legal reservation), the scope of subjects subject to property deprivation or restriction, the extent of property subject to deprivation or restriction, and the means of deprivation or restriction must also comply with the principle of equality of Article 7, and the proportionality test under Article 23 of the Constitution. The investigation and settlement of ill-gotten assets by political parties and their affiliated organizations not only involves fair competition among parties but also leads to deprivation of property from specific parties and their affiliated organizations in both appearance and substance. Taking account of the gravity of the issues, the purpose of such restrictions should be to pursue significant public interests, and there should be a substantive connection between means and the achievement of ends.
C. The matters regulated by the Act do not involve the dissolution of unconstitutional political parties, nor do they deprive political parties of the assets necessary for their existence and operation. Thus it is not prohibited by the constitution.
The petitioners primarily rely on Article 5, Paragraph 4, Second Sentence and Paragraph 5 of the same article of the Additional Articles of the Constitution, to argue that the guarantee of the survival of political parties is a matter reserved to the Constitution. They claim that the Act, which is merely a statute, regulates the transfer and prohibition of political party assets, and hence is in violation of the Verfassungsvorbehalt principle. However, upon examination, although Article 5, Paragraph 4, Second Sentence and Paragraph 5 of the same article of the Additional Articles of the Constitution stipulates that "The grand justices of the Judicial Yuan shall... form a Constitutional Court to adjudicate matters relating to… the dissolution of unconstitutional political parties" and "A political party shall be considered unconstitutional if its goals or activities endanger the existence of the Republic of China or the nation's free and democratic constitutional order,” these provisions only pertain to the dissolution of unconstitutional political parties, establishing that such matters shall be adjudicated by the Constitutional Court composed of grand justices of the Judicial Yuan. The intention is to exclude the legislators from enacting laws through usual legislative procedure to regulate the grounds and procedures for the dissolution of unconstitutional political parties contradicting the provisions, It does not prohibit the legislature from legislation to regulate other matters unrelated to the dissolution of unconstitutional political parties, such as the establishment, organization, finance, and activities of political parties. The purpose of the Act is to investigate and settle the ill-gotten assets of political parties, affiliated organizations and their entrusted managers, to establish a fair competition environment for political parties, and to promote a sound democratic political system in order to implement transitional justice (as stated in Article 1 of the Act). The relevant regulations of the Act do not involve the dissolution of unconstitutional political parties. Even regarding the transfer and prohibition of political party assets, they do not deprive political parties of the assets necessary for their existence and operation (such as membership fees, political donations, campaign funding donations, or campaign expense subsidies, as stated in Article 5, Paragraph 1 of the Act). Therefore, the Act is not in violation of the constitution.
D. Regarding Provision One to Three
(a) Paragraph 1 of Provision One does not violate Article 3, Paragraphs 3 and 4 of the Additional Articles of the Constitution
According to Article 61 of the Constitution, the organization of the Executive Yuan shall be prescribed by law. However, the Constitution does not specify the establishment and organization of the various levels of agencies under the Executive Yuan. Nonetheless, the hierarchical administrative system with the Executive Yuan as the highest executive authority is crucial for the effective fulfillment of state tasks. On the basis of principles of democracy and separation of powers, the Legislative Yuan may legislate or authorize the Executive Yuan to establish and organize the various levels of agencies under it through laws or orders. Article 3, Paragraphs 3 and 4 of the Additional Articles of the Constitution provide the following: "(Paragraph 3) The powers, procedures of establishment, and total number of personnel of national organizations shall be subject to standards set forth by law. (Paragraph 4) The structure, system, and number of personnel of each organization shall be determined according to the policies or operations of each organization and in accordance with the law as referred to in the preceding paragraph." These provisions authorize the legislators to establish framework laws that serve as guidelines for the construction of the state administration system. They also allow for the decisions on the organization, structure, and personnel of each agencies to be made within the framework of these laws, facilitating overall planning and establishment of state agencies. The above provisions not only grant the legislators the authority to construct individual executive organizations through laws, but also provide them with general and framework legislative authority regarding executive organization. However, this does not strip the legislators of its power to enact separate organizational laws or laws that contain provisions regarding organizational matters. It also does not mean that if the legislators fails to adhere to the guidelines set by the same level of statutory laws when enacting laws concerning executive organization, it will be considered unconstitutional.
Paragraph 1 of Provision One states that: "The Executive Yuan shall establish the Ill-Gotten Party Assets Settlement Committee (CIPAS) as the Competent Authority of this Act; the Basic Code Governing Central Administrative Agencies Organizations shall not be applicable to the CIPAS. " This provision establishes an administrative agency that is not specified in the Basic Code Governing Central Administrative Agencies Organization, excluding the application of relevant provisions of the Basic Code with the prescription of the Act. The Basic Code was enacted in accordance with Article 3, Paragraph 3 of the Additional Articles of the Constitution. The question is whether Provision One, by excluding the application of Article 5, Paragraph 3 of the Basic Code, which states, "After the promulgation of this Code, with the exception of this Code and organic laws and regulations of various agencies, no other laws or regulations may be used to govern the organization of agencies," violates the provisions of Article 3, Paragraphs 3 and 4 of the Additional Articles of the Constitution. Upon examination, it is evident that the legislator, based on its authority, is not prohibited from including provisions of an organizational nature in an enabling law. Therefore, the legislators, in view of the need for specific legislation to investigate and settle the ill-gotten assets of political parties and their affiliated organizations, deemed it necessary to formulate specific legislative policies. This is in line with the overall regulatory requirements and effectiveness necessary to achieve the objectives of the Act. Considering these factors, Paragraph 1 of Provision One , which states that the competent authority under the Act is not subject to the relevant restrictions of the Basic Code, does not necessarily contradict the provisions of Article 3, Paragraphs 3 and 4 of the Additional Articles of the Constitution.
However, the Act does not clearly specify the organizational level of the CIPAS, which raises doubts about whether it should be classified as a second-level or third-level independent agency under the administration of the Executive Yuan. In contrast, the Act on Promoting Transitional Justice, which was enacted after the Act and also deals with matters of transitional justice, explicitly designates the Transitional Justice Commission (hereinafter referred to as the TJC) as a second-level independent agency under the Executive Yuan in Article 2, Paragraph 2, which is significantly different from the Act. Moreover, both the Chairperson of the CIPAS and the Chairperson of the TJC are appointed as special appointees, which may lead to the interpretation that the CIPAS is also a second-level independent agency under the Executive Yuan. Furthermore, while the members of the TJC are nominated by the Premier and appointed with the consent of the Legislative Yuan (Article 8, Paragraph 1 of the Act on Promoting Transitional Justice), the members of the CIPAS are appointed by the Premier (Article 18, Paragraph 1 of the Act), resulting in inconsistencies in the legislative procedures and appointment mechanisms between the two commissions. Considering the importance of the Act in the democratic transition of the nation and the significant constitutional mission of the CIPAS to establish a fair competition environment for political parties and to implement transitional justice, this Court advises that it would be more appropriate for the legislature to make timely amendment to the Act to clarify the organizational level of the CIPAS. If it is to be classified as a second-level independent agency, the Basic Code should be taken as a guideline regarding the number of personnel and the appointment process in order to address the aforementioned concerns, so as to achieve consistency among related legislations, and to provide clarity on this matter.
(b) Provision One to Three do not violate the principle of separation of powers.
The petitioners claim that for the Act to establishe the CIPAS and for CIPAS to determine changes in property rights, it replaces judicial process with administrative hearings, instituted a functionally inappropriate organ, encroaches on the core of judicial function, and contravenes the separation of power. . .
The significance of the principle of separation of powers, which is one of the fundamental principles of the Constitution, lies not only in the differentiation of powers but also in the checks and balances of powers to prevent the infringement of individual freedoms resulting from the imbalance or abuse of power. Regarding the differentiation of powers, it should be determined in accordance with the provisions of the Constitution. When the Constitution does not explicitly specify the attribution of state powers, it should be assigned to an appropriate authority in terms of organizational structure, system, and function, considering the nature of the matter. This ensures that state decisions and their implementation can be more effective and correct (Referring to J. Y. Interpretation No. 613). However, the checks and balances of powers still has its boundary. When it does not contradict the explicit provisions of the Constitution, nor encroach upon the core power domains of other constitutional organizations, nor substantially hinder or usurp the exercise of powers by other constitutional organizations, nor jeopardize political accountability, (Referring to J. Y. Interpretations Nos. 391, 585 and 613), it does not obstruct the checks and balance among the powers.
Provision One provides: "(Paragraph 1) The Executive Yuan shall establish the Ill-Gotten Party Assets Settlement Committee (hereinafter referred to as the CIPAS) as the Competent Authority of this Act; the Basic Code Governing Central Administrative Agencies Organizations shall not be applicable to the CIPAS.(Paragraph 2) The CIPAS shall, within the power conferred by law, conduct the investigation, restitution, forfeiture of restoration of rights of ill-gotten assets acquired by the political parties, their affiliated organizations and trustees, restoration of rights, and other matters mandated by this Act," Provision Two provides: "The CIPAS may investigate and determine an organization as political parties’ affiliated organizations and trustee,” Provision Three provides: "The CIPAS’s disposition under article 6 or determination concerning the status of political parties‘ affiliated organizations and trustee under article 8 paragraph 5 shall not be made without public hearings" The aforementioned provisions of the Act regulate the decisional process for the administrative agency to investigate and handle individual cases for the first time based on their official duties. It also mandates that dispositions made under Article 6 of the Act and Provision Two shall undergo public hearing procedure to strengthen the transparency and openness of the decision-making process.
The executive power is active, proactive, agile, and comprehensive in its nature. On the other hand, the nature of judicial power, as stipulated in Article 77 of the Constitution, provides that the Judicial Yuan "shall preside over trials of civil, criminal, and administrative litigation , and over disciplinary measures against public functionaries." It decides on the facts and legal disputes of specific individual cases, applies objective values and norms formed by the Constitution and laws, and makes final judgments based on the application of the law. It has a case-by-case and passive nature , making it unsuitable for actively addressing the comprehensive rectification of unfair political party competition. The legislature, through special legislation of the Act, aims to rectify political parties' acquisition and accumulation of property that violated the laws at that time or failed to meet the mandates of the constitutional order of liberal democracy. The Act stipulates that the administrative agency, namely the CIPAS, should proactively and comprehensively exercise its powers in the settlement, which is a decision made for the first time in individual cases, of the ill-gotten assets by political parties and their affiliated organizations. It is an allocation of powers in accordance with the characteristics of agencies based on the nature of the matter. Furthermore, relevant parties still have the possibility to seek remedies through relevant legal procedures, thus it does not exclude judicial review. Therefore, it does not infringe upon the core of judicial power as the authority for final legality judgments, nor does it replace the judicial organ, leading to an imbalance of power relations among the organs. Hence, the Provisions One to Three do not violate the principle of separation of powers.
E. The Provision Four does not violate the principle of equality of Article 7 of the Constitution
The petitioners argue that the subject of the Act, i.e. political parties which obtained assets from August 15, 1945, and was formed before July 15, 1987, was the KMT. They contend that the Act constitutes a bill of attainder without justification , and hence violates the principle of equality.
Although laws are, generally speaking, general and abstract, if it specifically targets certain individuals, or describes the characteristics of its subjects in a general and abstract manner but only a single or a few subjects are subject to that it in practice, it falls under the category of a special type of law. If the purpose of such law is to pursue an important public interest that is constitutional, and if there is a certain degree of correlation between the classification adopted and the achievement of its ends, it will not be deemed unconstitutional (Referring to J. Y. Interpretations Nos. 520, 745, 750, and 760).
The Provision Four provides: " ‘Political parties’ means parties formed before July 15, 1987 and had been recorded in accordance with the Act Dealing with Civil Associations during Period of National Mobilization in Suppression of Communist Rebellion." It sets the general and abstract characteristics of being "formed before July 15, 1987" and "recorded in accordance with the Act Dealing with Civil Associations during Period of National Mobilization in Suppression of Communist Rebellion" as the criteria for the application of the Act to political parties. In practice, there are 10 political parties that meet these two criteria: the KMT, China Youth Party, China Democratic Socialist Party, China New Society Party, China Party for the Public Interest, Democratic Progressive Party, Youth China Party, China Democratic Youth Party, Democratic Action Party, and China Chun-Ching Party (Referencing the Ministry of the Interior Letter Tai-Nei-Min-1090120132 of June 9, 2020). Thus, the actual objects of Provision Four are these 10 political parties. However, in conjunction with other provisions such as Article 5, Article 6, or Article 9 of the Act, it becomes apparent that the KMT is the primary object of investigation and settlement. Therefore, Provision Four does fall under the aforementioned special type of law.
The legislative rationale for Provision Four states: "Considering the political parties formed before July 15, 1987, when martial law was lifted, many of their systems were incomplete, and they were able to survive in the political environment prior to the lifting of martial law, the assets they have acquired need to be reexamined. Furthermore, after the amendment and promulgation of the Act Dealing with Civil Associations during the Period of National Mobilization for Suppression of the Communist Rebellion in 1989, a chapter for 'political association' was added, allowing political organizations to form and thereby establishing the legal status of political parties. According to statistics of the competent authority, there are currently approximately 300 registered political parties. In order to avoid covering excessive number of political parties under its scope, which could lead to unnecessary reporting and investigation procedures, Article 1 specifically defines political parties as those formed before the lifting of martial law on July 15, 1987, and registered in accordance with the proviso of Article 65 of the Act Dealing with Civil Associations during the Period of National Mobilization for Suppression of the Communist Rebellion after its amendment on January 27, 1989.”
The period of martial law in Taiwan Area (excluding Kinmen and Matsu) was terminated by presidential decree at midnight on July 15, 1987. Under the martial law, the people did not have the freedom to form political parties. The Civil Associations Organization Act during the Period of Times of Emergency, which was enacted and promulgated on February 10, 1942, did not contain any provisions regarding political parties. However, after its amendment and promulgation as the Act Dealing with Civil Associations during the Period of National Mobilization for Suppression of the Communist Rebellion on January 27, 1989 (subsequently amended and promulgated as the Civil Associations Act on July 27, 1992), political parties formed before the lifting of martial law were required to be registered with the central competent authority, the Ministry of the Interior, in accordance with Article 65 of the aforementioned Act, in order to obtain the legal status of a political party. Only then could they recommend candidates to participate in the election of public officials in accordance with the provisions of the Public officials Election And Recall Act during the Period of Mobilization for Suppression of Communist Rebellion (with reference to Article 48 of the same Act). Only those political parties that met both of the aforementioned criteria were considered legal political parties at that time, and were subject to the Act.
Furthermore, prior to the lifting of martial law, there were no specific legal regulations regarding the financial aspects of political parties. These regulations were gradually added after the lifting of martial law, such as Article 45-5 of the Public officials Election And Recall Act during the Period of Mobilization for Suppression of Communist Rebellion, which was amended and promulgated on February 3, 1989. Since there were no regulations specifically governing the financial aspects of political parties before the lifting of martial law, it is possible for political parties to acquire and accumulate ill-gotten assets through means that violated the laws at that time or were formally legal but contradicted the mandate of the constitutional order of liberal democracy. Therefore, such political parties should be subject to the Act. In addition, after the lifting of martial law, there is a significant number of registered political parties, if all of them were subject to the Act, the scope would be excessively far-reaching. Therefore, it is necessary to appropriately limit the scope of the Act in terms of its objects.
However, among the 10 political parties that meet the two criteria specified in Provision Four, the application of Provision Four in conjunction with other relevant provisions of the Act, resulted in the KMT facing the majority of investigations and settlements. The Provisional Constitution granted the KMT a position of guiding and supervising the government during the Period of Political Tutelage. After entering the era of constitutionalism on December 25, 1947, although the Constitution and the Temporary Provisions did not grant the KMT a one-party ruling status, the KMT still in fact maintained a dominant position in exercising state power for an extended period, until the first party alternation in 2000. Furthermore, during its long-term ruling, the KMT acquired assets through distributing and operating Japanese assets that were left behind after WWII, receiving subsidies, transfers, gifts, and other means from the Executive Yuan and various government agencies, often with no or insufficient recompense. The party also obtained substantial assets through its party-owned corporations operating upon government-granted exclusive license . As a result, the KMT still possesses an unfair competitive advantage compared to other political parties when competing for political power through elections. The acquisition of such ill-gotten assets should be rectified to establish a fair competition environment for political parties, so as to implement transitional justice.
To avoid over-inclusiveness , Provision Four imposed two criteria: "formed before July 15, 1987," and "had been registered in accordance with the Act Dealing with Civil Associations during Period of National Mobilization in Suppression of Communist Rebellion." This moderately narrows down the number of political parties subject to the investigation of ill-gotten assets. Even if it is granted that Provision Four in conjunction with relevant provisions of the Act resulted in the KMT being the main object, it is the result of the evolution of political and social background of this nation and the special status that the KMT had held in the past. The purpose of the provision is to avoid excessive interference with political party activities and waste of administrative resources, and to effectively investigate and settle ill-gotten party assets in order to establish a fair competitive environment for political parties, strengthen democratic politics, and implement transitional justice, which are of compelling public interest. The classification used is substantially correlated to the achievement of its ends and does not violate the principle of equality of Article 7 of the Constitution.
F. Regarding Provision Five
(a) Provision Five does not violate the doctrine of void-for-vagueness
According to the requirement of doctrine of void-for-vagueness , it does not solely refer to the specific and detailed wording of legal provisions. When formulating laws, legislators may still consider the complexity of factual situations governed by the law and the appropriateness of their application to individual cases. They may appropriately utilize uncertain legal concepts in legislation to provide corresponding provisions. If the meaning stipulated by the law is not difficult to comprehend from the perspectives of the textual interpretation of legal provisions, legislative purposes, and the overall coherence of the legal system, and if the factual circumstances of a particular case fall within the scope of the law's intended regulation could be foreseeable to those subject to the regulation and can be determined and adjudicated through judicial review, then, it does not violate the doctrine of void-for-vagueness (Referring to J.Y. Interpretations Nos. 432, 594, and 768).
The Provision Five explicitly defines: "affiliated organization" as follows: "2. a legal entity, group, or institution that exists independently and is substantially controlled in terms of personnel, finance, or business operations by a political party. It also includes legal entities, groups, or institutions that were previously under substantial control of a political party and have not been transacted away from such control for an equivalent recompense .” The term "effectively controlled in terms of personnel, finance, or business operations" is found in Article 8, Paragraph 3 of the Company Act Similar terminology such as "has a direct or indirect control over the management of the personnel, financial or business operation of another company" can also be found in Article 369-2, Paragraph 2 of the Company Act, amended and promulgated on June 25, 1997; in the field of administrative law, they can also be found in, for example, Article 6, Paragraph 1, Subparagraph 5 (currently Article 10, Paragraph 1, Subparagraph 5) of the Fair Trade Act, enacted and promulgated on February 4, 1991, Article 43, Paragraph 3 of the Soil and Groundwater Pollution Remediation Act, amended and promulgated on February 3, 2010, and Article 8, Paragraph 2, Subparagraph 2, Item 3 of the Civil Servants Retirement Act, amended and promulgated on August 4, 2010, and Article 23, Paragraph 1, Subparagraph 3, Item 3 of the same Act (amended and promulgated as Subparagraph 5, Item 3 on May 11, 2016) (Note: This Act explicitly includes foundations as controlled groups or institutions; although this Act has been abolished, similar provisions can still be found in the Act on Retirement, Severance, and Funeral Benefits for Civil Servants enacted and promulgated on August 9, 2017). Therefore, although the term "personnel, finance, or operation is substantially controlled" is an uncertain legal concept, it is not unfamiliar in the legal system of this nation.
The term “substantially controlled” or "direct or indirect control", regardless of its meaning or the regulatory intent of the aforementioned legal provisions, serves to highlight the close relationship of dominance, supervision, or subordination between the controller and the controlled entity. Moreover, the Provision Five clearly defines substantial control based on aspects such as personnel, finance, or business operations, to determine the existence of such relationship. From the perspective of textual interpretation, legislative intent, and the overall coherence of the legal system, the meaning of the term should not be difficult to understand to those subject to the Act, and the foreseeability of whether the factual circumstances of a particular case fall within the scope of the Provision Five are also attainable. Furthermore, juristic persons, groups and institutions, whether for-profit or non-profit, that are substantially controlled by a political party through donations, contributions, or other means, although exist independently, are aware of its aforementioned close relationship with specific political party. Additionally, the ultimate meaning of substantial control can be confirmed by the courts through general methods of legal interpretation. Therefore, Provision Five does not violate the doctrine of void-for-vagueness .
(b) Provision Five does not violate the principle of equality of Article 7 of the Constitution
Petitioner One indicated that Provision Five, in both its First and Second Sentence, “avoided violating the equality between political parties through evasion” by including those organizations which have already been disassociated from substantial control of the political party. The Petitioner argues that this clearly treats unequals as equals, thereby violating the principle of equality. Petitioner Two argues that the Provision Five does not distinguish those affiliated organizations under substantially control and those that are not, nor does it ordain mitigating measures that reflect the difference in status. . With regard to such difference , it is evident that Provision Five violates the principle of equality.
According to the principle of equality as required by the Constitution, equals should be treated equally, and unequals should be treated unequally. If the law treats the same matters in the same manner, it does not violate the principle of equality. The legislative rationale behind Provision Five states: "Although these organizations, be they for- or non-profit juristic persons, groups or institutions, over which Political parties exercise substantial control through donations or contributions, exist independently, they have an inseparable relationship with political parties. Thus, they should be included in the scope of investigation and settlement under this Act to prevent the violation of the equality between political parties through evasion." The intention behind this is that affiliated organizations currently or previously controlled by political parties have a close relationship with the parties. The assets owned by these organizations may have been ill-gotten. Therefore, they should be included in the regulatory scope to avoid impeding investigations and settlement of ill-gotten assets, to ensure the establishment of a fair competition environment for political parties, to rectify past violations of the free democratic constitutional order, and to implement transitional justice, which is a constitutional and compelling public interest.
The definition of affiliated organizations in Provision Five is divided into two categories. The first category, defined in the First Sentence, refers to organizations currently under substantial control of a political party in terms of personnel, finance, or operation. The second category, defined in the Second Sentence, refers to organizations that were previously under substantial control of a political party in terms of personnel, finance, or operation, and have acquired separate status without fair recompense. Since properties are generally transferable (either through barter or through recompense ), both organizations currently or previously under substantial control of a political party may have acquired ill-gotten assets from the party; furthermore, organizations fall under the definition of the Second Sentence in Provision Five , which have disassociated themselves from the control of political party without adequate recompense, may still possess ill-gotten assets within the scope of inadequate recompense. Therefore, in terms of whether they possess ill-gotten assets, the affiliated organizations defined in the Second Sentence of Provision Five and those defined in the First Sentence are essentially the same. Although there is a distinction between the First and Second Sentence of Provision Five regarding whether the organizations are currently under political party control, this difference is not relevant to the investigation and settlement of ill-gotten assets, and hence requires no differential treatment. Therefore, Provision Five does not violate the principle of equality in Article 7 of the Constitution, by including, under the Second Sentence, those juristic persons, groups, and institutions under that were previously under political party control but achieved separate status without fair recompense, alongside those that are currently independent but under political party control in terms of personnel, finance, or business operations.
In addition, Provision Five is merely a definitional provision related to affiliated organizations. The legal effects, which builds on this definitional provision, are stipulated in other provisions, not in Provision Five. This Court hereby clarifies that whether Provision Five violates the principle of equality of Article 7 of the Constitution, and whether respective provisions violate the principle of equality, are two separate issues.
(c) Provision Five does not fail the proportionality test of Article 23 of the Constitution.
The purpose of Provision Five is to prevent organizations that are currently or previously controlled substantially by political parties, and may have ill-gotten assets, from obstructing investigations and settlements of such improper acquisitions, thus affecting the establishment of a fair competition environment among political parties and rectifying past violations of the constitutional order of liberal democracy, so that transitional justice would be implemented. These objectives are of compelling public interest, and hence are constitutional.
The First Sentence of Provision Five defines "affiliated organizations" as those currently substantially controlled by political parties. Due to the dominant influence of political parties over these organizations in terms of personnel, finances, or operations, the assets owned by these organizations are highly likely to have been acquired improperly through inappropriate means orchestrated by political parties, thus involving ill-gotten of assets. Therefore, political parties can still exercise substantial control over such ill-gotten assets through their substantial control over the affiliated organizations. The Second Sentence of Provision Five defines organizations that were previously affiliated organizations under the definition of the First Sentence, although they had ceased to be under substantial control by political parties, if their detachment from substantial control was done without recompense or with disproportionately low recompense , the assets owned by these organizations may still qualify as ill-gotten assets. Therefore, Provision Five includes juristic persons, institutions, or groups that are currently or previously under substantial control by political parties within the definition of affiliated organization. This inclusion subjects them to the regulations of the Act, aiming to prevent hindrance to investigations and settlements of ill-gotten assets. It is evident that this provision contributes significantly to the achievement of legislative purposes.
Since "affiliated organizations" defined by the First Sentence of Provision Five are those currently under substantial control by political parties, with a close relationship of dominance and subservience to the political parties, they should fall within the parameter of the Act. Furthermore, the Second Sentence defines organizations that have already been detached from substantial control by political parties, however their detachment was not achievedthrough a transaction with fair recompense, then they still essentially possess ill-gotten assets with regard to the advantage gained through unfair transaction. . If they are not included as objects of regulation by the Act, there is a risk of significant flaw in the investigation and settlement of ill-gotten assets. There are no equally effective alternative means to effectively investigate and settle such ill-gotten assets. Therefore, the definition of affiliated organizations of Provision Five is necessary for the effective investigation and settlement of ill-gotten assets.
Provision Five, which subjects affiliated organizations as well as political parties to the Act,expands the objects of the Act and broadens the scope of investigation and settlement of ill-gotten assets. It is true that the assets of these affiliated organizations may be affected by the investigation and settlement. However, compared to the significant flaw in investigating and settling ill-gotten assets, which would impact compelling public interests of the establishment of a fair competition environment among political parties and the rectification of past violations of the constitutional order of liberal democracy, this Court believes that it is still a measure proportionate to its purposes.
In summary, the definition of affiliated organizations of Provision Five has substantive connection between its means and ends. Therefore, it does not violate the proportionality principle of Article 23 of the Constitution.
Regarding the legal effects of the application of relevant provisions of the Act, which stem from the application of this definitional provision, are effects of those relevant provisions, not of Provision Five. This Court hereby clarifies that whether Provision Five violates the principle of equality of Article 7 of the Constitution, and whether the respective provisions violate the principle of equality, are two separate matters.
(d) The Second Sentence of Provision Five does not violate the principle of non-retroactivity of law.
Petitioner Two claims that the Second Sentence of Provision Five involves the application of current laws to past concluded specific events, thereby violating the principle of non-retroactivity of laws in a modern Rechtsstaat.
Based on the stability of law and the principle of legitimate expectation, laws that restrict or deprive people of their rights (hereinafter referred to as unfavorable laws) generally should not have retroactive effect. In other words, laws should not, as a general principle, be applied retroactively to events that have already concluded before the enactment of the law. However, it is not inherently prohibited by the Constitution for the legislature to enact retroactive law disadvantaging certain individuals or groups, if such laws pursue compelling public interests recognized by the Constitution. Furthermore, If the claim of legitimate expectations is based on expectations incompatible with the constitutional order of liberal democracy, it will not be worthy of protection, and the issue of legitimate expectations will not arise.
If an entity meets the criteria set forth in, or is deemed to be an affiliated organization based on the Second Sentence of Provision Five, the relevant provisions regarding the investigation and settlement of affiliated organization assets under the Act will apply. From the perspective of the relevant juristic persons, groups, or institutions, although the Second Sentence of Provision Five is only definitional , it still amounts to alaw with disadvantaging effect. Additionally, if the fact that the relevant organization has been detached from substantial control by political party occurred before the implementation of the Act, it can still be evaluated and recognized as an affiliated organization under the Second Sentence of Provision Five. In this regard, Provision Five does indeed have retrospective effect.
The purposes of Provision Five is to identify affiliated organizations, that are closely related to political parties and investigate, and to investigate and settle their assets that were ill-gotten from political parties. This is done to establish a fair competition environment for political parties, promote a healthy democratic politics, and implement transitional justice. Therefore, the pursuit of Provision Five is in line with compelling public interests recognized by the Constitution, and the retrospective effect of the Second Sentence is constitutionally justifiable. Regarding the application of the Second Sentence of Provision Five to organizations such as juristic persons, groups, or institutions that were once under substantial control by political party but had already been detached before the implementation of the Act, although there may be a lack of foreseeability, their expectations were based on the authoritarian regime during martial law and the Period of National Mobilization in Suppression of Communist Rebellion, in which there was no clear distinction between the ruling party and the state. Such expectations are inconsistent with the constitutional order of liberal democracy, and are not worthy of protection. Therefore, the issue of protecting their legitimate expectations does not arise. The Second Sentence of Provision Five does not violate the principle of non-retroactivity of law.
G. Regarding parts of the petitions dismissed
Petitioner Two petitioned for the interpretation of Article 3, Paragraph 1 of Article 5, Paragraph 1 of Article 6, Paragraphs 1 and 5 of Article 9 and Paragraph 1 of Article 27 of the Act. Upon examination, these provisions are not applicable laws for cases concerning the Act being . They do not meet the requirements for constitutional interpretation as expounded in J.Y. Interpretations Nos. 371, 572, and 590. Therefore, this part of the petition is dismissed.
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*Translated by Yu-Yin Tu