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图书目录: The term 'Interpretation' herein denotes any
one of the three forms of decisions rendered by the Grand Justices: namely a judgment of the Constitutional Court, a ruling on the constitutionality of law or regula- tion, or a uniform interpretation of law or regulation to resolve dis- crepancy in the intent and application thereof as put into practice by government agencies. Interpretation Number No. 499 (1) Whether a Constitution Amendment that has already passed by the National Assembly and signed by the President may nevertheless be unconstitutional due to inadequate or improper process? If so, to what extent is the process to amend the Constitution considered inadequate or improper? (2) Whether a Constitution Amendment that has already passed by the National Assembly and signed by the President may nevertheless be unconstitutional be- cause its content is in violation of certain fundamental principles upon which the Constitution is based? No. 494 The Labor Standards Law provides that the minimum standard regarding the in- crease of overtime pay specified by Article 24 of the said Law is applicable to the lines of business specified in Article 3 of the said Law. Does the said standard is applicable as well to the jobs of supervisory, intermittent or other special type not within the categories of the aforesaid Article 24? No. 490 Article I of the Conscription Law provides that all male persons of the Republic of China shall be drafted for military service, and Article 59, Paragraph 2 of Law Governing the Enforcement of Conscription Law further prescribes that the person sentenced to imprisonment who is eventually given pardon, commutation, proba- tion or parole shall not be relieved from military service if the serving time in prison is less than four years, with no exception to be made to the conscientious objectioner. Do the said provisions violate Article 13 of the Constitution guaran- teeing the freedom of religion belief, thus being null and void? Do Articles 11 and 14 of the Financial Institution Supervised Management and Conservatorship Regulation concerning purchase and assumption exceed the scope of authority as delegated by Credit Cooperative Law and Banking Law, thus violat- ing Article 15 of the Constitution ['or protection of property right and being void? Whether the first half of Article 2, Subparagraph 2 of the Law of Compensation for Wrongful Detentions and Executions is inconsistent with the constitutional principle of proportionality in regard to its exclusion of the right to claim for State compensa- tions, due to the mere fact that the act of wrongfully imprisoned person was against the public order or good morals, without differentiating the degree of gravity or con- sidering whether the act was beyond the standards acceptable to the society in general? Section 4 of the Regulation Regarding Issuing Permission of Social Organization promulgated by the Ministry of Interior requires that any social organization must be named in accordance the administrative districts where it is located. Does the said Regulation surpass the permissible bounds of relevant Law's details and tech- nicalities, thus constituting an infringement on the people's freedom of association guaranteed by the Constitution and being null and void? The Statute Governing the Recovery of People's Rights Damaged during the Peri- od of Martial Law provides reasonable damages to victims who had been wrong- fully charged of offenses against internal or external security. However, Article 6 of said Statute limits its application to "those who had been detained or subjected to execution of sentences but eventually found innocent." Without extending its ap- plication to other similar victims, whether this statute contradicts with equal pro- tection under Article 7 of the Constitution'? Article 63, Paragraph 3 of the Statute Governing the Relations between People in Taiwan Area and People in Mainland Area provides that the payment of all the na- tional bonds issued before 1949 should be deferred until national unification. Does the provision of said Article violate Article 23 of the Constitution, thus infringing bond holders' property rights protected by the Constitution? The Article 70 of the Enforcement Rules of the Government Employee Insurance Law provides that the insured's right to claim for proceeds is limited to a period of 2 years from the date this right may be exercised. Whether this Article contravenes Article 23 of the Constitution? Is it unconstitutional to calculate premiums payable under the National Health In- surance program according to an insured amount table prescribed by the authority in charge? Are compulsory national health insurance and imposition of overdue charge un- constitutional? Does Article 19, Paragraph 1 of the Statute Governing the Control and Prohibition of Gun, Cannonball and Knife imposing the mandatory rehabilitative measure upon the convicted violate the principle of proportionality as specified in Article 23 of the Constitution? The Precedent of the Supreine Court states that the public servant's negligence in discharging his duty as provided in Article 2, Paragraph 2 of the State Compensa- tion Act, that upon which a claim for damages may arise is limited to the situation where the public servant is obligated to discharge certain duty to the victim but fails to do so. Does the limitation so imposed by the said precedent is so excessive and is beyond the meaning and intent of the State Compensation Act, thus contra- vening Article 15 of the Constitution governing protection of people's property right? (1) Article 3, Paragraph 3, Subparagraph 1 of the 1997 Amendment to the Consti- tution provides that the Legislators may interpellate the Premier and the heads of ministries and other agencies under Executive Yuan while the Legislative is in session. Does the "heads" provided in the said Subparagraph include the Chief of the General Staff? (2) Article 67, Paragraph 2 of the Constitution provide that the Committees set up by the Legislature may invite government officials and any other private parties concerned to be present at the committee meetings and to express their crews. Does the Chief of the General Staff as the chief staff for the Ministry of De- fense have a duty to be present upon being invited by the committee? Article 25, paragraph 1 of the Labor Insurance Act provides that the labor insur- ance program should be offered and limited to full-time employees and staff mem- bers. To a person who always maintain a status as a labors but presently works on a part-time basis, does the said restriction conflict with very meaning and purpose of the Labor Insurance Act and Article 153 of the Constitution? Besides, does said re- striction which could be imposed by Law be and now finds its existence in the En- forcement Rules exceed the scope of authorization and shall be void under the re- quirements specified in Article 23 of the Constitution? The interpretative letter of Personnel Administration Bureau states, "Drafted per- sonnel on the basis of retaining position with suspended pay, upon his honorary discharge from military service and restoration of former civilian position, shall have his years of military service to be accredited and combined with his previous civilian service in accordance with Law." Does said letter constitute a discrimina- tory treatment to a person who joins the public civilian service after military ser- vice, thus conflicting with the principle of equality so specified in Article 7 of the Constitution? Does Article 1002 of the Civil Code violate the principle of equality and propor- tion as specified in Articles 7 and 23 of the Constitution, thus being void? No restriction can be made on freedom of residence and right of changing resi- dence so stipulated in Article 10 of the Constitution except through legislation or its concretely, specifically and unambiguously authorized regulation under the cir- cumstances of 'necessity' required by Article23 of the Constitution. Is the Regula- tion on Conscription promulgated by the Executive Yuan under no proper autho- rization to restrict the male citizen eligible for military service to apply for Exit Permit to take trip overseas unconstitutional due to its lack of the said require- ments? Articles 11, 133, Paragraphs 1 and 3, and 158 of the Military Trial Law preclude the defendant convicted under the military law from appealing to civil court. Does the said provision violate Articles 8, 16, 77, and 80 of the Constitution, thus being null and void? What are the reasons for, and thus the extent of, Article 73 of the Constitution? What types of improper speech or conduct by a Member are protected by the prin- ciples of parliamentary self-discipline and immunity of legislative speech. Under what circumstances can the judicial agency exercise its power to investigate and adjudge such conduct? Does the absence of provision in the Government Employee Insurance Law for (1) return of insurance premium or (2) old age benefit for separating employees other than through retirement, violate Article 15 of the Constitution for protection of property right ? (1) Whether freedom of speech guaranteed by Article 11 of the Constitution in- cludes commercial speech intending to obtain profits through sales of goods, services and creativity? (2) Whether prior censorship by the provincial (municipal) health authority before broadcasting a drug commercial is constitutional? Article 1017, Paragraphs 2 and 3 of the Civil Code (Part IV Family) before being amended on June 3 1985, had originally provided that the part of marital union property which belong to the husband and did not belong to the wife at the time of matrimony and the proceeds of the wife's separate property cumulated during con- tinuance of the marital relationship should be presumed as the property of the hus- band. The Supreme Court made similar ruling in its Precedent. Does Article l of the Enforcement Rules Governing the Application of Civil Code (Part IV Family) which prohibits the application of the Civil Code ex post.facto constitute an in- fringement on right of equality guaranteed by Article 7 of the Constitution to the married women who entered into matrimonies and had their property interests cu- mulated therefrom before the aforesaid date, thus requiring an immediate revision for purpose of giving them proper relief? The letter issued by the Government Information Office sets up certain specific cri- teria based upon Article 32, Subparagraph 3 of the Publication Law for defining the offenses of obscenity so stipulated by Article 235 of the Criminal Code and in case a publication falls within one of the said criteria, it shall be warned, prohibit- ed for marketing or circulation as provided by Article 37, 39 Paragraph 1, Sub- paragraph 3, and 40, Paragraph l, Subparagraph 4. Does the said letter exceed the permissible scope of the laws, thus in conflict with the spirit and intent of the con- stitutional protection of free speech and being null and void? Whehter a disciplinary action under Article 25 of the Physician's Law against a Chinese herb doctor who patients with prescription drugs without a doctor's in- struction violates the work rights guaranteed by Article 15 of the Constitution thus being null and void? Article 48, Paragraph 1, Subparagraph l 1 of the Regulation Governing the Super- vision of Insurance Agents, Brokers and Adjusters prescribes that in case insur- ance agent, broker or adjuster violates relevant insurance ordinance or regulation so promulgated, the Ministry of Finance may, subject to the severity of violation, suspend his business or revoke his license. Does the said regulation imposing such punitive administrative sanction violate Article 23 of the Constitution which re- quires that the people's freedoms and rights may only be restricted by the law or regulation concretely, specifically and unambiguously authorized by law, thus being null and void? Does the government who orders those private-owned preexisting roads to be bur- dened with public easement without paying compensation constitute such an in- fringement upon the owners' property rights so protected by Article 15 of the Con- stitution? Article 18, Subparagraph 4 of the Farmers Association Law provides that moving domicile out of an area where a Farmers Association locates will cause member- ship withdrawal. May said provision be adopted as a basis for suspending the com- prehensive farmers health insurance coverage to the person who continues to main- tain his status as a farmer and to pay his premium when due but moves his domi- cile away from the area where his Farmers Association locates? If so, does it con- flict with Article 6 of the Comprehensive Farmers Health Insurance Act and Arti- cles 7 and 10 of the Constitution? Whether the Law on Discipline of Public Functionaries violates Article 16 of the Constitution for it lack of appellate system and cannot fully protect people's right to initiate legal proceedings, therefore it shall be amended accordingly? (1) Whether the "court" provided in Article 8 of the Constitution includes the "prosecutor's office", hence empowering the prosecutor to detain a person be- yond the 24 hour period as authorized by said Article for the court? (2) Whether the "unlawful" arrest and detention condition imposed by Article 1 of the Law of Habeas Corpus was inconsistent with Article 8 of the Constitution? Is it unconstitutional to exclude inborn chronic disease or deformity that occurred before a worker joins the labor insurance from the labor insurance coverage? Shall the Premier (President of Executive Yuan) submit his resignation to the Pres- ident prior to the newly elected legislators' swearing-in for their new term? Articles 5, 6, 7, 12, and 21 of the Statute for Prevention of Gangster authorize the police to arbitrarily classify a person as a gangster, to force him to appear before police or arrest him, to adopt a secret witness system, and to impose a rehabilita- tive program upon him irrespective of due process of law. Do the said Provisions constitute such an infringement on the people's freedom and rights as guaranteed by the Constitution? Article 22, Paragraphs 1 and 3 of Enforcement Rules of the University Law require the universities to design compulsory courses commonly to be taken by all the stu- dents regardless of their majors, no student may graduate if he fails to pass the courses once finally designed. Does the said provision violate Article 11 of the Constitution which guarantee freedom of teaching to the people? Do Article 5, Paragraphs 2 and 3 of the Law of Constitutional Interpretation Proce- dure authorizing only the Supreme Court and Administrative Court to have the right to petition to the Grand Justices Council for the interpretation of statutes gov- erning the pending litigation violate Article 80 of the Constitution which provides that a judge shall try cases in accordance only with law? Whether the statute of limitations on petition to invalidate an already registered trademark constitutes deprivation of property right protection, thus violating Arti- cle 15 of the Constitution? Article 41 of Criminal Code permits punishment of not more than six months of detention to be commuted to a fine. However combining punishment of several of- fenses in accordance with Article 51 of Criminal Code precludes application of said Article 41. Does this constitute such an unnecessary restriction on people's rights so protected in the Constitution? Article 1089 of the Civil Code provides that in case of inter-parental disagreement in exercising parental rights over a minor, the father shall have the right of final de- cision. Does the provision of said Article run against Article 7 of the Constitution and Article 9, Paragraph 5 of the Amendment which proclaim gender equality under the law'? Whether the right of access to the media is a kind of freedom of speech protected Article 988 of Civil Code provides that a bigamic marriage is void. If said Article should be applicable to a third party, who enters in marriage with a person upon trusting in good faith and without negligence the validity of the court's final decla- ration on dissolution of his or her previous marriage but said decision is eventually overruled after the marriage, does it contravene the principle of legitimate expecta- tion, thus constituting such an infringement of the people's rights as provided in the Constitution? In case the procedure adopted by the Legislature for passing of certain statutory bill is colored with procedural flaws or breach of the Legislature's self-regulating Rules of Legislative Proceedings but it is not so evidently material as it may con- travene the related provisions of the Constitution, shall the said statutory bill still be subjected to the Grand Justices' judicial review, then having it to be declared void for the Legislature's deviation from the said self-regulating Rules? What are the boundaries of the national territory of the R.O.C.? Article 91 of the Constitution provides that the Member of the Control Yuan shall be elected by Provincial and Municipal Councils, the local councils of Mongolia and Tibet, and Chinese citizens residing abroad. J.Y. Interpretation No. 76 thus states that the Control Yuan together with other public opinion authorities are deemed equivalent to the congress of the democratic country. But Article 15 of the Amendment to the Constitution now provides that from the second term thereafter the Member of the Control Yuan should be nominated by the President and con- firmed by the National Assembly. May the Control Yuan continue to be character- ized as a part of the congress? If not, shall its investigation power and impeach- ment power be transferred to the Legislative Yuan? The letter issued by the Ministry of Civil Service, based upon a resolution passed by the Government Employee Insurance Medical Advisory Board, indicates that the insured who becomes disabled by accident during covered period and now is in a condition of 'vegetable' is not entitled to claim for disability benefit if his physi- cal condition requires continuous medical care. Is said letter conflicting with Arti- cle 4 of the Government Employee Insurance Law and Article 58, Paragraph 1 of the Enforcement Rules of said Law, thus depriving the insured of the property right protected by Article 15 of the Constitution? Article 23 of the Constitution permits that the Legislature may authorize the com- petent authority to prescribe rules or regulations for enforcement of the law so en- acted, but the authorization must be specific concrete and unambiguous. Shall any provision of the Rules Governing the Management of the Business of Civil Avia- tion be declared unconstitutional in case the authorization it relies upon fails to meet the said requirements? The interpretative letter issued by the Ministry of Interior states: "The (labor insur- ance) insured who, upon his retirement, had withdrawn from labor insurance pro- gram as required by Law, and claimed and received old-age benefits shall not be entitled to make further claim for injury and sickness benefits, in accordance with Article 20 of the Labor Insurance Act." Does said letter constitute an infringement upon the insured's rights as the petitioner alleges that he deserves to enjoy under labor insurance program, thus in conflict with the protection specified by Article 15 of the Constitution? Article 77 of the Constitution provides that the Judicial Yuan shall take charge of cases concerning disciplinary measures against public functionaries. Shall a public functionary upon being removed from office by his superior be permitted to appeal to the Public Functionary Disciplinary Commission for judicial relief? The court's ruling on imposition of administrative penalty for tax evasion has been handled as a part of criminal procedure based up the former interpretations before 1948 and Measures Governing the Handling of Financial Penalties Cases. Do the procedures so adopted violate due process of law as enumerated in the constitu- tion? Interpretation No.76 states that the Natural Assembly, Legislative Yuan and Con- trol Yuan, so far their constitutional status and nature of their function concerned. are on the same footing as they collectively constitute an equivalence to the parlia- mentary body of democratic nations. Does it mean the Members of National As- sembly are entitled to receive the same emolument as their counterpart in the Leg- islative Yuan and Control Yuan under the Constitution? Administrative Court's Precedent ET. No.30 states that neither intent nor negli- gence is essential to establish liability for imposition of administrative penalty. Does the said Precedent neglects the very basis of legal liability so that it should cease to be binding in order to ensure conformity with the spirit of Constitutional in the protection of people's right? Whether Article 68 of the Enforcement Rules of the Government Employee Insur- ance Law limiting retention of the insured years to a period of five years is in con- flict with Article 21, Paragraph 2 of the Government Employee Insurance Law, and therefore is unconstitutional and void? The Precedent of (Supreme) Administrative Court states that a state-owned enter- prise established in accordance with the Company Law does not have the capacity to be a defendant party, thus shall the said body corporate be permitted to be a party in an administrative procedure? Does Law Governing Offenses Punished by the Police permitting the police office to subject a person to reformatory education, learning of living skills or recorrec- tion or to detain a person or force him for hard labor constitute such an infringe- ment of his personal freedom so protected by Article 8 of the Constitution? The interpretative letter issued by the Ministry of Civil Service states that the monthly salary used as a basis for calculating retirement pension or old-age benefit under Government Employee Insurance Law does not include work allowance, full attendance allowance for military staffers and supervisors' allowance. Is said letter repugnant to the meaning and purpose of Articles 22, 155 and 172 of the Constitu- tion? The Book of Family of Civil Code prohibits bigamic marriage. In case of violating the said prohibitory provision, an interested party may petition to the court for its annulment. However, if second marriage was concluded after the spouse of first marriage being forcedly separated during the civil war period and having no hope to be reunited under this drastic change of circumstances and has last for over decades, shall the spouse of first marriage still be permitted to avail herself (of himself) of said prohibitory provisions to invalidate this putative marriage, thus de- priving the innocent putative spouse of the rights and protections so provided in Article 22 of the Constitution? The Law Governing the Levy of Tax provides that a person who wishes to petition i for review of tax must pay a proportional amount of tax so defaulted or post ade- quate security as a condition for submission of such a petition. Does the said provi- sion deprives a person who is financially unable to make such a payment or post- ing of his opportunity to seek administrative relief, thus constituting an unneces- sary restriction on his right of presenting petition as guaranteed by Article 16 of the Constitution? The statute or ordinance upon which a final and irrevocable judgment is relied or the opinion expressed on such statute or ordinance wherein is held unconstitutional by the Grand Justices Council upon a petition by the interested person for interpre- tation, is the party against whom such final and irrevocable judgment is entered en- titled to file for a retrial or an extraordinary appeal on the basis of said interpreta- tion ? Article 496, Paragraph 1, Subparagraph 1 of the Code of Civil Procedure permits initiation of an action for retrial if the final judgment is based upon 'apparently er- roneous application of law or regulation.' Does the said provision cover the situa- tion where the Court consciously or unconsciously fails to apply relevant provision of law in rendering its final judgment in order to implement the protection of the rights and interests guaranteed by the Constitution? The Law Governing Offences Punished by the Police permits the police to impose sanctions of administrative detention and compulsory labor upon the police offend- ers. Does the said Law constitute such an infringement of personal freedom as guaranteed by Article 8, Paragraph 1 of the Constitution, thus being unconstitu- tional and void'? Article 32, 73 and 101 of the Constitution provide that no member of the National Assembly, Legislature and Control Yuan shall be held liable for opinions expressed and votes cast during his attendance at its respective session, should the-said provi- sions be applicable mutatis mutandis to the delegates of the Provincial Assemblies and Local Councils? Shall High Courts and District Courts be subordinate to the Judicial Yuan as pro- vided in Article 77 of the Constitution'? Shall the National Assembly, the Legislative Yuan and the Control Yuan be consid- ered en masse as equal to parliaments of democratic nations? While reelection of the second-term Members of both Legislative and Control Yuans is de facto impossible due to the severe calamity, shall the first-term Mem- bers of both Yuans be allowed to remain their offices after expiration of their re- spective terms as provided in Articles 65 and 93 of the Constitution? Does the Judge specified in Article 81 of the Constitution include the Prosecutor? Appendices The Constitution of the Republic of China Amendment [2000] The Law of Interpretation Procedure For Grand Justices Index Relative Laws Key Words Translators |