Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 
In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.

Headnotes

    Article 146, Paragraph 1 of the Criminal Code (hereinafter "Provision I"), which punishes the procurement of an incorrect voting result through fraudulent means, does not violate the principle of nullum crimen, nulla poena sine lege certa (the principle of legal certainty in criminal law), because the constituent elements of the crime are foreseeable and deducible. 

    Article 146, Paragraph 2 of the Criminal Code (hereinafter "Provision II"), which punishes voting under false census registration (phantom voters), is proportionate and does not create an unreasonable differential treatment between the candidates and voters who are both changing their census registration for the election. Consequently, Provision II does not violate the right to vote, the right to equality, and the principle of nullum crimen, nulla poena sine lege certa. 

    Article 146, Paragraph 3 of the Criminal Code ( hereinafter "Provision III"), where the attempted crime of Provision 2 is punishable, does not violate the principle of proportionality and the constitutional principle of proportionality in sentencing. 

    Petitioner VIII's final court decision, Supreme Court Judgment 111-Tai-Shang-1861 (2022), was quashed and with the matter remitted to the Supreme Court on the account that the decision failed to recognize the petitioners had been working at that specific electorate for more than twenty years and should have had the legitimate reason to vote even they did not live there per se.

Background Note

    Article 146 of the Criminal Code stipulates: "A person who by fraud or other illegal means procures an incorrect result from voting or alters election returns may be sentenced to imprisonment for not more than five years (Paragraph 1). A person who with purpose to render a candidate elected falsely makes census registration to obtain the right to vote and votes may be subject to the same punishment (Paragraph 2, added in 2007). An attempt to commit an offense specified in one of the two preceding paragraphs is punishable (Paragraph 3)."^[1] The specific act punishable by Article 146, Paragraph 2 of the Criminal Code is generally called "Phantom Voter" in Taiwanese society. 

    There were five consolidated petitions filed by a conjoined 20 petitioners in this case. Under the intention of getting certain candidates elected, the petitioners either (1) conducted false census registrations to obtain the voting rights of certain electorate, later voted on voting day; (2) conducted false census registration to obtain voting rights of certain constituent but failed to vote; or (3) were complicit in false registration. The petitioners were all prosecuted and found guilty finally in their respective criminal cases under the provisions in Article 146 of the Criminal Code. 

    The petitioners lodged constitutional complaints, arguing that (1) Provisions I and II infringe the people's freedom of movement (freedom of change of residence) and right to vote; (2) "other illegal means" in Provision I is not clear in terms of its constituent elements, which consequently violates the principle of rule of law; (2) Provision II violates the principle of proportionality, the principle of certainty of the law (the principle of clarity of law), and the equality principle, consequently infringes people's right to vote, freedom of movement and right to equality; (3) Provision III where the attempted crime of Provision 2 is punishable, is illegitimate and violates the principle of nullum crimen, nulla poena sine lege certa; and (4) additionally, Petitioner VIII (group of persons led by Hui-Tzong Liu) also argued that their final court decision, Supreme Court Judgment 111-Tai-Shang-1861 (2022) (hereinafter, the "disputed Supreme Court Judgment"), is unconstitutional.

Summary of the Judgment 

Holding

1. Provision I, which stipulates that "[a] person who by fraud or other illegal means procures an incorrect result…may be sentenced to imprisonment for not more than five years," does not violate the principle of nullum crimen, nulla poena sine lege certa.
2. Provision II, which stipulates that "[a] person who with purpose to render a candidate elected falsely makes census registration to obtain the right to vote and votes may be subjected to the same punishment," does not violate the principle of proportionality and the principle of legal certainty in criminal law. The provision also does not constitute an unconstitutional differential treatment, thus conforming to the protection of the right to vote and equality under Articles 17 and 7 of the Constitution.
3. Provision III where the attempted crime of Provision II is punishable does not violate the constitutional principle of proportionality and the constitutional principle of proportionality in sentencing.
4. Petitioners I to VIII's petitions for constitutional review toward the abovementioned provisions are meritless and shall all be dismissed. 
5. The disputed Supreme Court Judgment shall be quashed. Its case shall be remitted to the Supreme Court. 
6. The rest of the petitions by Petitioners I to V are dismissed.

Reasoning

1.  Provision I does not violate the principle of legal certainty in criminal law.

    The principle of legal certainty in criminal law does not necessarily restrict the legislator's discretion in choosing the proper terminology or legal concepts when drafting a law, which includes using indefinite legal terms (indefinite concepts of law) to define a crime's constituent elements. However, the scope to which criminal punishment can objectively apply should have the possibility of being deduced and limited through legal interpretation so that criminal courts may share a common standard when deciding whether the constituent elements set by indefinite legal terms are present in a case. In this way, indefinite penumbras in the scope of applicability may be eliminated when interpreting a criminal provision, thus conforming to the principle of nullum crimen, nulla poena sine lege certa. 【54】

    Provision I stipulated "by fraud or other illegal means" as the crime's  actus reus (Objektive Tatbestandsmerkmale), in which the word "fraud," based on common language experience and judicial practice, can be effortlessly understood as deceitful means intended to mislead others. Even though "other illegal means" is an indefinite legal term, provided the examples from the term "fraud" and other voting regulations, it can still be substantialized as result-manipulating means prohibited by election laws.【56】

    Viewing from Provision I's textual meaning, a systematic understanding of the constituent elements of a result crime (Erfolgsdelikt), and the legal system's general relevancy, although Provision I employs an indefinite legal term as the constituent element of a crime, it has set up a proper standard for its application, thus limiting the scope of punishable actions. Consequently, the actions punishable under Provision I are predictable for the regulated persons; they could also be scrutinized and defined by criminal courts. Therefore, Provision I does not violate the principle of nullum crimen, nulla poena sine lege certa.【57】

2.  Provision II does not violate the principle of nullum crimen, nulla poena sine lege certa and the constitutional protection toward the right to vote and equality.

(1)    Pertaining constitutional principles and the standards of review:

    The right to vote, enshrined in Article 17 of the Constitution, is one of the most fundamental political rights in a democratic country. If the State were to limit some people from exercising their right to vote with restrictive measures to the extent of criminal punishments, its purpose has to be of compelling public interest; its measures should be the least restrictive; and the disadvantages the measures have caused should not outweigh the protected public interest. Only in this way that the measures conform to the principle of proportionality under Article 23 of the Constitution. 【60-61】

    Election is the most important way for citizens to join democratic politics, enabling people to achieve self-realization and shape the order of public life through exercising political rights. The constitutionality of the differential treatment caused by measures restricting the right to vote should be reviewed with intermediate scrutiny even if the differential treatment is not based on a suspect classification. In other words, the measure’s purpose has to be of substantial public interest, and its means should be substantially related to such purpose so that it conforms to the constitutional protection of equality.【62】 

(2)    Provision II does not violate the protection of the right to vote:

    The right to vote under Article 17 of the Constitution encompasses the freedom to choose where to vote. The term "making (false) census registration" as stated in Provision II refers to altering one's household registration without actually living in the registered place, as defined in the Household Registration Act. Therefore, Provision II should be interpreted as penalizing the act of obtaining the eligibility to vote through making false registration and subsequently casting a vote to get certain candidate elected. The provision poses a restriction on people's freedom to choose where to vote.【65】

    The major ratio legis of Provision II is that the legislators consider officials elected by non-residents of a constituency cannot substantially represent the place. The purpose of Provision II is to safeguard the democratic legitimacy and fairness of elections. A regional election can be seen as an election of a political community, in which most democratic countries require voters to reside in their constituencies for the eligibility to vote. In this regard, Article 15, Paragraph 1 of the Public Officials Election and Recall Act (hereinafter "Election and Recall Act") requires electors (voters) to live in an electoral district for no less than four consecutive months, starting from the date of registering their household within that district, to acquire voting right within that district. Said requirement defines the scope of membership in the political community and establishes conditions for acquiring voting rights. Its purpose is to safeguard the practice of self-governance within the political community, which is of especially important public interest.【68-71】 

    With the rapid development of transportation and social network technology, it is not uncommon for a person to live in an electoral district and work in another. The close connection forged by working at a certain electoral district on a long-term basis is undeniably sufficient for a person to identify with the community. In this sense, the boundary of a political community should be more flexible. Therefore, the term "live in" in Article 15, Paragraph 1 of the Election and Recall Act should not be confined to the traditional understanding of taking up residency or forming family life at the place. Rather it should extend to situations where the person has worked continuously in an electoral district.【72】

    Provision II employs penal measures toward actions that undermine the openness and fairness of elections. No alternative measures of equal effectiveness exist that are less restrictive. Although less-restrictive propaganda, prevention, and verification measures by administrative agencies before the elections do help reduce illegal activities, they do not have equal effectiveness. Fairness of elections is the indispensable cornerstone of democracy, once endangered or faltered, the ensuing slippery slope may bring massive and irretrievable damage. Hence, even if the situation could not be proved as urgent, so long as the danger is possible to happen, the judiciary should defer to the political department's risk evaluation and risk-managing policy, which is the case of Provision II. Although Provision II has posed restrictions towards people's right to vote, it is still appropriate in safeguarding its purpose, which is the democratic legitimacy and fairness of elections.【74-76】

    To conclude, Provision II is suitable for attaining its purpose; its measure is the least restrictive amongst other means such as close examination of census registrations upon report; its restriction toward the people's right to vote is appropriate. Provision II conforms to the principle of proportionality under Article 23 of the Constitution. In addition, Provision II does not impose substantial restrictions on people's freedom of residence and change of residence, nor does it affect people's right to choose where their domicile place is registered. Provision II also does not concern the violation of Article 10 of the Constitution.【78】

(3)    Provision II does not violate the protection of equality:

    It is common for people to reside in places other than where their domicile place is registered for various reasons such as family life or education. These actions do not involve the situation of gaining voting rights to get certain candidates elected and therefore do not concern the purpose of Provision II, which is safeguarding the fairness and democratic legitimacy of elections. Whether to punish these actions falls within the discretion of the legislature. One cannot criticize that Provision II violates the principle of equality simply because said actions are not punished under it.【81】

    Petitioners VI and VIII argued that Provision II has created an unreasonable differential treatment between voters that conducted false census registrations and the candidates that do. They argue that a candidate who does not reside in the registered place would also be punishable under Provision II. This is because he or she must first alter their registration to obtain eligibility to vote in that region in order to be eligible as a candidate. However, given that the candidate would engage in campaign activities actively in his or her electoral district (the registered domicile place), a substantial connection similar to working at the district on a long-term basis is undoubtedly established, even if the candidate resides elsewhere. Such a situation, which can be distinguished from instances where voters simply altered their census registration to gain voting rights in a specific district, should be deemed as fulfilling the requirement of de facto residency, thus not constituting a false census registration. Provision II does not violate the constitutional protection of equality.【82】

3.  Provision III does not violate the principle of proportionality and the constitutional principle of proportionality in sentencing.

   Provision III punishes the attempted crime of Provision II. The provision shares the same purpose as Provision II, which is to ensure the democratic legitimacy and fairness of elections. The purpose is of especially important public interest and hence legitimate.【87-88】

   Once the offender has falsely altered his or her census registration with the mens rea of rendering a candidate elected, it constitutes an attempt (Versuch) of the crime of Provision II, which enters a stage where it is highly probable for the offender to realize the danger of the crime by voting. From the perspective of the effective prevention of danger, Provision III punishing the attempted crime of Provision II is a measure that is substantially related to its purpose. Provision III conforms to the principle of proportionality and the constitutional principle of proportionality in sentencing.【89】

4.  The disputed Supreme Court Judgment is unconstitutional and shall be quashed. Its case shall be remitted to the Supreme Court. 

    Based on theratio legis of Article 15 of the Election and Recall Act, the disputed Supreme Court Judgment and Taiwan High Court Criminal Judgment 110-Shang-Keng-Yi-172 (2021) both considered that the element of "has been living in an electoral district" required actual residence of the district. Said decisions disregarded the fact that Petitioner VIII had been working at Taoyuan City for almost thirty years, which should have been sufficient justification for gaining voting rights there. The decisions ruling Petitioner VIII’s behaviors constituted the element of "falsely makes census registration" are wrong applications of Provision II, clearly based on the wrong understanding of the scope of protection and the meaning of the right to vote.【97, 99-100, 104】

    The legal opinion in the disputed Supreme Court Judgment is unconstitutional and should be quashed under Article 62, Paragraph 1, First Sentence of the Constitutional Court Procedure Act. To incorporate the decision of this TCC Judgment to the criminal justice system, and out of respect for the Supreme Court's competence of unifying legal opinions and supervising lower court through the judicial tier system, plus the Supreme Court's independent decision on the original criminal case, the disputed Supreme Court Judgment should be quashed. Its case shall be remitted to the Supreme Court.【106】
 

Notes: 

[1] Translator's note: The translation of this Article (and later mentions) is slightly adjusted from its official version for better understanding.