1. The procedural history of the case and the procedural requirements for the application for a constitutional interpretation
The applicant, Shui-Ch’ih Chuang, also known as Jih-Hsin Construction, initiated administrative litigation arising under the Act on Recusal of Public Servants due to Conflicts of Interest. The Taipei High Administrative Court Judgment 98-Su-1850 (2009) （hereafter referred to as the initial final judgment）dismissed his suit. The applicant appealed and the appeal was dismissed by the Supreme Administrative Court Order 99-Tsai-1026 (2010) (hereafter referred to as the initial final ruling). The applicant opined that Article 15 of the Act on Recusal of Public Servants due to Conflicts of Interest announced on July 12, 2000, was inconsistent with the Constitution and applied for an interpretation from this Court. The Court made J.Y. Interpretation No. 716, declaring Article 15 unconstitutional and that it shall become invalid within a year of the date on which the interpretation was announced. The applicant sought a retrial on the basis of the above interpretation, but the suit for retrial was dismissed by the Taipei High Administrative Court Judgment 103-Tsai-11 (2014) and the Supreme Administrative Court Judgment 103-Pan-504 (2014)（hereafter referred to as the First Retrial Final Judgment）. The dismissal was based on the reason that J.Y. Interpretation No. 716 declared Article 15 unconstitutional but invalid only after a specified period of time, that Article 15 still remained in effect before expiry of the period specified in the interpretation, and that J.Y. Interpretation No. 716 had no retrospective effect on the initial final judgment of the case under which the Interpretation arose.
After the Court rendered J.Y. Interpretation No. 725, the applicant requested a retrial of the First Retrial Final Judgment. The request for a retrial was dismissed by the Supreme Administrative Court Order 104-Ts’ai-378 (2015)（hereafter referred to as the Second Retrial Final Order）for the following reasons: The party requesting a retrial (the applicant of this Interpretation) was not the applicant for J.Y. Interpretation No. 725, and J.Y. Interpretation No. 725 did not apply retrospectively to applicants in other cases seeking constitutional interpretation. The Supreme Administrative Court therefore held that Article 276, Paragraph 3 of the Administrative Litigation Act did not apply. In addition, the applicant requested a retrial of the First Retrial Final Judgment on November 18, 2014. The First Retrial Final Judgment was served on September 30, 2014, and the 30-day period set out in Article 276, Paragraph 1 of the Administrative Litigation Act expired on October 30, 2014. The suit requesting a retrial was therefore illegal and was dismissed by a court order.
Later, this Court made J.Y. Interpretation No. 741. The applicant relied upon J.Y. Interpretation No. 741 to request a retrial for the Taipei High Administrative Court Judgment 103-Tsai-11 (2014) and for the First Retrial Final Judgment. The request for a retrial was dismissed by the Supreme Administrative Court Order 106-Ts’ai-1561 (2017)（hereafter referred to as the Third Retrial Final Order）for the following reasons: The initial final judgment and initial final order received by the applicant became final on May 6, 2010. According to Article 276, Paragraph 4 of the Administrative Litigation Act, the maximum period of five years for requesting a retrial expired on May 6, 2015. The applicant for retrial (the applicant of this Interpretation) initiated the suit for retrial on December 9, 2016, after the maximum period of five years had expired and without falling into the exceptional circumstances set out in the proviso of Article 276, Paragraph 4 of the Administrative Litigation Act. The applicant’s suit for retrial is therefore illegal and was dismissed by a court order.
The applicant asserted that because Article 276, Paragraph 4, First Sentence of the Administrative Litigation Act (hereafter referred to as the Disputed Rule) does not allow retrial if the request for retrial is made after the maximum period of five years has expired, regardless of whether there are remedies available to the applicant, the length of period during which a remedy is available, and whether failing to request a retrial during the maximum period is the applicant’s fault, the Disputed Rule makes it impossible for the applicant to receive effective remedy in accordance with this Court’s interpretation and therefore infringes the applicant’s litigation right protected by Article 16 of the Constitution. The applicant also opined that J.Y. Interpretation No. 209 should be modified. The applicant therefore applied to this Court for Interpretation and modification of J.Y. Interpretation No. 209.
The Disputed Rule was applied in the Third Retrial Final Order. J.Y. Interpretation No. 209 was also cited by the Third Retrial Final Order for the reason of “uniform application of the law”. This application therefore complies with the requirements set out in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act and shall be accepted.
After reviewing the case, this Interpretation and the reasoning are set out below:
2. When the laws and regulations applied by a final judgment or ruling are declared by this Court to be unconstitutional, the applicants for the interpretations may request a retrial for their individual cases. The period during which the applications are pending at this Court shall not be included in the maximum period for requesting a retrial.
The interpretations of this Court made upon the application of an individual person are effective for the case on which the application is based. The applicant for the interpretation may request courts to review the merits of the case on which the application is based. The interpretations of this Court have binding effect for all government officials and individual persons of this country, and all government officials shall deal with relevant matters in accordance with the interpretations of this Court（See J.Y. Interpretation Nos. 177 and 185）. When individual persons apply for constitutional interpretations, and the laws or regulations applied by the final judgment or ruling are declared unconstitutional by the interpretations of this Court, the applicants for those interpretations may rely on such interpretations to request a retrial or other remedies, the purpose of which is to realize the protection of people’ s litigation rights protected by the Constitution. （See J.Y. Interpretation No. 741）
The Disputed Rule states: “No retrial may be initiated after five years from the date on which the judgment becomes final,” and such maximum period of five years for requesting retrial does not apply only when the litigation party asserts Article 273, Section 1, Paragraphs 5, 6, or 12 as his ground for retrial (See the proviso of the Disputed Rule). Moreover, Article 276, Paragraph 5 states: “If a dissatisfied party requests to retry a case for which a retrial judgment is final, the period stipulated in the preceding paragraph starts from the date on which the initial judgment becomes final. However, if a request for retrial is found to be with merit, the period stipulated in the preceding paragraph starts from the date on which the retrial judgment becomes final.” The purpose of such a rule is to ensure the certainty of final judgments. Therefore, unless there are particular grounds for retrial, no retrial may be initiated after the maximum period of five years for requesting retrial has expired. In addition, to prevent a litigation party from repeatedly initiating a retrial with regard to the same legal matter and wasting judicial resources, the five-year period during which a retrial may be sought, in principle starts from the date on which the initial judgment becomes final. The legislative purpose of the Disputed Rule is to protect legitimate public interests. The maximum five-year period for requesting retrial and the date on which the period starts to run do not obviously exceed the scope of the legislative power and are therefore reasonable limitations. Therefore, the Disputed Rule does not violate the constitutional protection of people’s litigation rights in the common circumstances where a retrial is sought pursuant to any of the provisions stipulated in Article 273, Paragraph 1 of the Administrative Litigation Act.
However, in circumstances where the laws and regulations applied by a final judgment or ruling are declared by this Court to be unconstitutional (including situations where laws and regulations become invalid immediately or after a prescribed period of time), and the applicants for that interpretation in reliance thereon request a retrial, if the period during which the applications are pending at this Court (from the day on which the applications become pending at this Court to the day on which the interpretations are served upon the applicants) is included in the maximum period for requesting a retrial , the applicants may receive a favorable interpretation after the expiry of the five-year maximum period for retrial stipulated in the Disputed Rule, but not be allowed to request retrial, thus not having the right to effective remedies （See Article 91, Paragraph 3 of the Constitutional Court Procedure Act）. Therefore, when an applicant requests a retrial pursuant to Article 273, Paragraph 2 of the Administrative Litigation Act, the period during which the application is pending at this Court shall not be included in the maximum period for requesting retrial. The maximum period for requesting a retrial set out in the Disputed Rule shall, in order to be consistent with the constitutional protection of people’ s litigation rights, be calculated as set forth above. After this Interpretation is announced, when laws and regulations are declared by this Court to be unconstitutional, and the applicants for that interpretation in reliance thereon request a retrial, the period during which the applications are pending at this Court shall be excluded when calculating the maximum period for requesting retrial. If there is time left [after excluding the period during which the applications are pending at this Court], the applicants shall in accordance with law request a retrial within the time left. If the remaining time exceeds 30 days, a request for retrial must nevertheless in accordance with law be initiated within a fixed period of 30 days after the announcement of the respective interpretations.
J.Y. Interpretation No. 209, cited by the Third Retrial Final Order for the reason of “uniform application of the law” (chiyü fali chih it’i shihyung) was a uniform interpretation of laws and regulations about Article 500 of the Code of Civil Procedure regarding the 30-day fixed period (pupien ch’ichien) and the five-year maximum period for requesting a retrial. As far as the 30-day fixed period is concerned, it is consistent with this Interpretation and does not need to be modified. However, the five-year maximum period for requesting a retrial is similar to the Disputed Rule. In addition, when courts review compliance with the maximum period of time for requesting a retrial, they usually refer to J.Y. Interpretation No. 209. On the basis of the same reasoning, the calculation of the maximum period for requesting a retrial set out in the proviso of Article 500, Paragraph 2 of the Code of Civil Procedure shall also exclude the period during which the application is pending at this Court. To this extent, J.Y. Interpretation No. 209 shall be supplemented.
3. The applicant in this case may request the remedy of retrial
In order to protect the rights and interests of the applicant whose case led to an interpretation, and to affirm his or her contribution to upholding the Constitution, when this Court declares laws or regulations unconstitutional, the applicant of that interpretation may in accordance with law request a retrial within 30 days of the date on which the interpretation is announced. In addition, J.Y. Interpretation No. 725 states that “… in order to provide effective remedies to the case that led to an interpretation, if the interpretation of this Court sets out a particular remedy for the case that led to an interpretation, such a remedy shall be provided ….” Therefore, even if the date on which this Court declares a law or regulation unconstitutional is after the aforementioned maximum five-year period for retrial, this Court may consider the circumstances of the individual case and set out a particular remedy for the case that led to an interpretation, without being restricted by the Disputed Rule specifying a maximum five-year period for retrial. This is so in order to provide opportunities of remedy to the case that led to an interpretation, and to realize the protection of people’s litigation rights protected by the Constitution.
As set out earlier, the initial final judgment became final on May 6, 2010. The applicant relied upon J.Y. Interpretation Nos. 716, 725, and 741 to make the first request for retrial, the second request for retrial, and the third request for retrial, each within 30 days of the announcement of each of the interpretations. The first request for retrial was dismissed by a court for the reason that the statute declared unconstitutional remained in effect at that time. The second request for retrial was dismissed by a court for the reason that the applicant was not the applicant for J.Y. Interpretation No. 725 and for the reason that the request for retrial was made after the expiry of the 30-day statutory period. The third request for retrial was dismissed by a court for the reason that the request for retrial was made after the expiry of the five-year maximum period for requesting retrial. In other words, the merits of the applicant’s case were not adjudicated pursuant to J.Y. Interpretation No. 716. If the applicant makes another request for retrial pursuant to this Interpretation, even if the periods during which the applications for J.Y. Interpretations Nos. 716 and 800 were pending at this Court are excluded from the calculation of the maximum period, the five-year maximum period set out by the Disputed Rule for requesting a retrial has still expired. Put differently, the applicant cannot exercise his right to effective remedies.
Therefore, in order to realize the Constitution’s protection of people’ s litigation rights, and to affirm the applicant’s contributions to the Constitution, given the special circumstances of this case, this Court announces the following for the applicant’s case: The applicant may request a retrial for the initial final judgment within 30 days of the announcement of this Interpretation, notwithstanding the five-year maximum period set out by the Disputed Rule for requesting a retrial. If the applicant requests a retrial within 30 days of the announcement of this Interpretation, the court having jurisdiction over retrial shall find the request for retrial to be in compliance with the ground and period for retrial set out by Article 273, Paragraph 2 and Article 276, Paragraph 3 of the Administrative Litigation Act, reopen the proceedings, and adjudicate the case on its merits pursuant to J.Y. Interpretation No. 716.
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*Translated by Chi CHUNG