Article 38 of the Social Order Maintenance Act stipulates that “[w]here an offense in violation of this Act may constitute a violation of criminal laws ……, it shall be referred to a prosecutor …… to be handled in accordance with criminal laws ……. However, if the offense in question is punishable by …… fine……, it shall also be punished according to this Act.” The proviso regarding the imposition of fine, applied in the situation that an individual has already been prosecuted under criminal law and convicted by a final judgment for the same act, constitutes a double punishment and violates the double jeopardy doctrine under the rule of law. In response to this concern, it shall become null and void from the date of announcement of this Interpretation.

While reviewing the Social Order Maintenance Act violation cases 108-Taochih-197 and 260, the petitioner, who is a judge at the Taiwan Taoyuan District Court, Taoyuan Summary Division, Subdivision Xiao, suspected that the applicable law in the cases was unconstitutional. Article 38 of the Social Order Maintenance Act stipulates that “[w]here an offense in violation of this Act may constitute a violation of criminal laws ……, it shall be referred to a prosecutor …… to be handled in accordance with criminal laws ……. However, if the offense in question is punishable by …… fine……, it shall also be punished according to this Act.” The petitioner believed that the proviso regarding the imposition of fine (hereinafter the provision at issue), rendering an individual who violates both the Social Order Maintenance Act and criminal laws simultaneously by one act being not only prosecuted according to criminal laws but also fined according to the Social Order Maintenance Act, violates the double jeopardy doctrine. After ruling to suspend the proceedings, he petitioned this Court for constitutional interpretation.

Considering that the petition satisfied the requirements of judges’ petition for constitutional interpretation laid down in J.Y. Interpretation Nos. 371, 572, and 590, this Court granted review and made this Interpretation. The reasoning is as follows:

The double jeopardy doctrine under the rule of law prohibits that the State repeatedly prosecutes and punishes an individual for the same criminal act. This is the concrete embodiment of the principle of legal stability, the principle of legitimate expectations, and the principle of proportionality under the rule of law. In principle, the aforementioned double prosecutions and punishments refer to criminal prosecutions and punishments. However, where administrative penalties stipulated by other laws are equivalent or similar to criminal penalties in terms of their nature, purpose, and effects, the double jeopardy doctrine shall also apply.

The provision at issue mandates that an act in violation of both the Social Order Maintenance Act and criminal laws shall be fined according to the Social Order Maintenance Act in addition to being prosecuted according to criminal laws. The legislative purpose of the provision at issue, setting forth the proviso that requires to apply the penalty provision regarding suspension of business, closure of business, and fines, is to prevent the offenders of the Social Order Maintenance Act from avoiding the punishments of suspension of business, closure of business, and fines under the Act by the criminal penalties lighter than the aforementioned punishments (see Legislative Yuan Gazette, Vol. 80, No. 22, p. 71 of the plenary sitting proceedings.) However, the offenses stipulated in the Part III Sub-Provisions of the Social Order Maintenance Act include “misdemeanors” equivalent to criminal penalties (see Legislative Yuan Gazette, Vol. 78, No. 20, p. 166 of the committee proceedings; Vol. 78, No. 51, pp. 184 and 186 of the committee proceedings; Vol. 80, No. 22, p. 126 of the plenary sitting proceedings; Vol. 80, No. 45, p. 27 of the plenary sitting proceedings; the legislative reasons of Articles 63, 67, 70, 74, 77, 83, 85, 87, and 90 of the Social Order Maintenance Act: Legislative Yuan Gazette, Vol. 80, No. 22, pp. 83-86, 91-92, 94, 97-98, 100-101, and 111-117 of the plenary sitting proceedings.) The factors considered in assessing penalty in Article 28 are also the same as the factors considered in determining sentences in Article 57 of the Criminal Code. In addition, Article 92 stipulates that when handling a case involving a violation of the Act, courts shall apply mutatis mutandis the Code of Criminal Procedure unless the Act provides its own provisions. In sum, the offenses stipulated in the Part III Sub-Provisions of the Social Order Maintenance Act and their infringements of legal interests differ only in extent, rather than in nature, from the criminal offenses triggered by the same acts and their infringements of legal interests. Therefore, if an act of an individual is subject to a penalty of fine under the provision at issue after she/he has been prosecuted under criminal law and convicted by a final judgment for the same act, the aforementioned double jeopardy doctrine is violated. Accordingly, the application of the provision at issue to the situation that an individual has been prosecuted under criminal law and convicted by a final judgment for the same act constitutes a double punishment and violates the double jeopardy doctrine under the rule of law. In response to this concern, it shall become null and void from the date of announcement of this Interpretation.

This Interpretation does not address the question whether an individual may be fined according to the provision at issue after being acquitted by a final judgment, because the fact of the case does not involve this circumstance. In addition, the provision regarding suspension of business, closure of business, and confiscation in the proviso of Article 38 of the Social Order Maintenance Act does not violate the double jeopardy doctrine under the rule of law, because the purpose of those dispositions is to exclude the harm that has occurred or to prevent the harm from occurring or expanding. Both are hereby explicated.

＊Translated by Chung-Lin CHEN