Petitioner, who was a Judge of the Taiwan Taipei District Court Administrative Litigation Division, during adjudication of cases 102-Chien-173, 178, and 285 (2013) and 103-Chien-276 (2014) concerning the Immigration Act at the same Court, alleged that the applicable Article 58, Paragraph 2 (hereinafter “Disputed Provision 1”) and Article 76, Subparagraph 2 (hereinafter “Disputed Provision 2”) of the Immigration Act, which prohibit and punish transnational marriage agencies for demanding remunerations or contractual remunerations, are restrictions to the freedom of occupation and the freedom of contract, and therefore are not consistent with the principle of proportionality and equality. Furthermore, the statutory fine of Disputed Provision 2 is NT$200,000 or more, which constitutes a restriction on the right to property and also violates the principle of proportionality, thus raising doubts of breaching Article 7, Article 15, and Article 22 of the Constitution. After ruling to stay the proceeding, the petitioner applied to this Court for interpretation of the Constitution. The petition is in line with the requirements for the Judge's Petition for Constitutional Interpretation as indicated in J.Y. Interpretations Nos. 371, 572, and 590, therefore the petition is accepted. This Court hereby delivers this Interpretation based upon the reasons outlined below.
First, Disputed Provision 1 does not contravene the intention of the Constitution to protect people’s right to work and freedom of contract.
The purpose of the right to work stipulated in Article 15 of the Constitution is to protect people’s autonomy to choose their occupations and to engage in relevant practices. To protect public interests such as the rights of others, a sound trading order, and preventing illegal profit-seeking behaviors, the State can still restrict the right to work through the law. Based on the disparity in contents, different review standards of the Constitution are applied to legal restrictions on the right to work. The legislature is allowed to restrict the freedom to practice an occupation, such as with regard to the manner, time, place, or content of work, if the purpose of such restrictions is to pursue legitimate public interests and there is a reasonable nexus between the means of restriction and the achievement of the purpose (see J.Y. Interpretation No. 778). Moreover, the freedom of contract is an essential mechanism for individual self-development and self-realization. It is also the basis for autonomy under private law. In addition to the material content of the contract being protected by the Constitution under related fundamental rights provisions, freedom of contract is also one of the other liberties preserved under Article 22 of the Constitution. Only when it is necessary to defend legitimate public interests may such a right be reasonably restricted under the law (see J.Y. Interpretation No. 576).
Disputed Provision 1 stipulates: “Transnational marriage agencies shall not demand remunerations or contractual remunerations.” For individuals or groups whose business content is marriage matching, it constitutes an interference in their business conduct whether or not they may take the initiative to demand remunerations or contractual remunerations, therefore it is a restriction to the right to work. For those who only occasionally, not as a business, engage in marriage match, Disputed Provision 1 interferes with the content of contracts concluded with others and therefore can be viewed as a restriction on the freedom of contract.
Both parties matched by a transnational marriage agency mostly have different languages, economic conditions, and cultures, in additionally, issues of immigration are involved; if demanding remunerations is allowed in transnational marriage matchmaking, it is likely that for the sake of remuneration information asymmetry would be used to force matchmaking or to deceive both parties, or that marriage matchmaking will be used as a disguise for immigration or even human trafficking. Furthermore, in practice, if transnational marriage agencies were allowed to demand remunerations or contractual remunerations, matched marriages might be commercialized and also raise doubts about the objectification of women. The purpose of legislators in enacting Disputed Provision 1 is to improve the environment for transnational marriage matchmaking, to protect the rights and interests of the parties involved in the marriage, to stop human trafficking, to prevent the objectification of women and the commercialization of marriage (see Ministry of the Interior, Republic of China, Letter Tai-Nei-Yi 1040023250 of April 20, 2015). Therefore, Disputed Provision 1’s prohibition of demanding remunerations or contractual remunerations for transnational marriage agencies pursues legitimate public interests and the purpose is deemed constitutional.
In terms of the means of restriction, Disputed Provision 1 restricts transnational marriage agencies from actively demanding remunerations or contractual remunerations for marriage matches, it does not, however, entirely prohibit the work or business conduct of transnational marriage agencies; nor does it limit the qualification requirements for those who engage in such practices. Therefore, it doesn’t involve a restriction of the freedom to choose an occupation and still allows nonprofit organizations to engage in non-commercial transnational marriage matchmaking (see Article 59 of the Immigration Act). If the matched person actively provides monetary gifts or property interests to a marriage agency after a successful marriage match, that is not prohibited by Disputed Provision 1. The aforementioned restriction of Disputed Provision 1 merely limits the business content of those who engage in transnational marriage matchmaking and only interferes with the content of contracts between occasional marriage matchmakers and others. It not only helps the decommercialization of transnational marriage matchmaking, thereby improving the environment for transnational marriage matchmaking, but can also reduce illegal behaviors such as human trafficking through fake marriage agencies, and avoid corrupt practices such as the objectification of women and the commodification of marriage. As a result, there is a rational connection between the restrictive measure of Disputed Provision 1 that prohibits transnational marriage agencies from demanding remunerations or contractual remunerations and the purpose it aims to achieve.
To sum up, the restrictions of Disputed Provision 1 discussed above do not contravene the intention of the Constitution to protect people’s right to work and freedom of contract.
Second, Disputed Provision 1 does not contravene the intention of the Constitution to protects people’s right to equality.
The people’s right to equality enshrined in Article 7 of the Constitution does not necessarily prohibit all differential treatment by the State. Whether or not a legal norm with differential treatment complies with the requirement of equal protection shall be determined by whether the purpose served by the differential treatment is constitutional, and whether there is a certain level of correlation between the classification adopted and the achievement of the purpose the legal norm sets out to pursue. If the classification adopted by the legal norm does not involve a suspect classification and the differential treatment does not involve a significant fundamental right that is relevant to the development of personality and human dignity, this court may adopt a lenient standard of review (See J.Y. Interpretations Nos. 768 and 794). If the purpose of the legislation is to pursue legitimate public interests, and there is a rational connection between the classification and the achievement of the purpose, then it is not in conflict with the equal protection under Article 7 of the Constitution.
Disputed Provision 1 stipulates that transnational marriage agencies shall not demand remunerations or contractual remunerations, and those who violate it shall be fined by Disputed Provision 2. As for non-transnational marriage matchmaking, it is not covered by the restriction, and there is no provision of penalties either. Obviously, Disputed Provision 1 classifies whether the matchmaking involves transnational marriages or not and gives transnational marriage matchmaking relatively unfavorable differential treatment to, as mentioned above. This classification does not involve a suspect classification; its differential treatment relates to profit-making practices or contract matters, which are not significant fundamental rights mentioned above. Therefore, this Court adopts lenient review.
The legislators took into consideration, possible differences between both parties of transnational marriages, information asymmetry between the parties and the agency, and even the problem of human trafficking, etc. These issues are more obvious and more likely to occur compared to non-transnational marriage matchmaking. In addition, transnational marriage even more involves transnational population movement and migration, often causing the party who leaves his or her country for marriage to suffer greater pressure or even undue oppression in a foreign country, which is not likely to happen in a non-transnational marriage matchmaking. Therefore, Disputed Provision 1 was enacted to give relatively unfavorable differential treatment to requests for remunerations or contractual remunerations of transnational marriage matchmaking in order to prevent agencies from ignoring the above issues or aggravating them for the sake of profit. The Act is aimed at improving the environment for transnational marriage matchmaking in order to protect the rights and interests of marriage parties, prevent human trafficking, avoid the objectification of women and commercialization of marriage (refer to the letter from the Ministry of the Interior mentioned above). The public interests pursued by the above-mentioned legal purpose are legitimate, the classifications adopted and differential treatment help to achieve the above purpose and are rationally related. Therefore, Disputed Provision 1 does not contravene the intention of the Constitution to protects people’s right to equality.
Third, Disputed Provision 2 does not contravene the intention of the Constitution to protect people’s right to property.
Imposing a fine on people for breaching an obligation under the administrative law involves a restriction of people’s right to property. The penalties undoubtedly should be determined by the severity of the violation in order to comply with the constitutional principle of proportionate punishment. When legislators impose punishments for breach of obligations under administrative law, it should be considered as falling within the scope of legislative discretion, if the range of punishment is set in advance depending on the severity of the violation and if there is an appropriate adjustment mechanism to avoid penalties that are evidently too harsh in a given case. This Court shall, in principle, defer to the legislature (see J.Y. Interpretation No. 786).
Disputed Provision 2 stipulates: “If any of the following circumstances occur, the violator of this provision shall be fined between NT$ 200,000 and NT$ 1 million. The penalty shall be imposed on the person every time the person violates this provision…2. A person engages in transnational marriage matchmaking and demands remunerations or contractual remunerations.” The provision provides that a person who demands remunerations or contractual remunerations when engaging in a transnational marriage matchmaking shall be fined between NT$200,000 and NT$ 1 million, which grants the competent authority the discretion to impose a penalty according to the severity of the violation. As for the minimum penalty, the application of Article 8 and Article 18 of the Administrative Penalty Act mitigates the penalties in these cases and thus can avoid punishments that are evidently excessive and run afoul of the principle of proportionate punishment. As a result, Disputed Provision 2 does not contravene the intention of the Constitution to protect people’s right to property.
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* Translated by Yun-Hsien Diana LIN.