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大法官解釋表頭

(釋字第 251 號 )      友善列印PRINT  
Interpretation

J.Y.
Interpretation

NO.251 

Date

1990/1/19

Issue

Does the Act Governing the Punishment of Police Offences permitting the police department to take measures restricting physical freedom contravene the Constitution?

Holding

  The detention and forced labor (hard labor) ordered by the police department under the Act Governing the Punishment of Police Offences (hereinafter "the Act") are types of punishment relating to physical freedom. It would be desirable to revise the law expeditiously, whereby these punishments may be decided by the courts in accordance with legal procedure, so as to conform to Article 8, Paragraph 1, of the Constitution. This tenor has been addressed under this Yuan's Interpretation No. 166 on November 7, 1980.

  Article 28 of the Act provides the punishment of "sending (criminals) to a specific place for recorrection or for learning living skills." This punishment imposes restrictions on physical freedom; therefore, it does not conform to the Constitution when it is subject to the jurisdiction of the police department. This has to be revised, thereby allowing the courts to render decisions under legal procedure. The existing procedure regarding the detention and forced labor indicated in the former interpretation and the punishments addressed in this interpretation will be null and void after July 1, 1991. All relevant laws also have to be revised by that date. The Interpretation No. 166 thus has to be complemented.

Reasoning

  Under Article 8 of the Constitution, physical freedom shall be protected, and except in the case of flagrante delicto as provided by law, no person shall be arrested or detained other than by a judicial or a police agency in accordance with procedures provided by law. Further, individuals shall not be tried or punished other than by a court of law in accordance with procedures prescribed by law. Among the punishments provided by the Act are detention and forced labor, which are decided by the police and concern the individual's physical freedom. It would be desirable to revise the law expeditiously, whereby these punishments will be decided by the courts in accordance with legal procedure, so as to conform to the rule of the Constitution. This tenor has been addressed under this Yuan's Interpretation No. 166 on November 7, 1980.

  Article 28 of the Act provides that "those who are loitering with intent or lazy and habitually commit offenses punishable by the police will receive severer punishments than others. They may be sent to a reformatory or be required to learn living skills in a specific place after being released from a prison." The so-called correction or learning living skills in a specific place are kinds of punishment imposed by the police, which restrict physical freedom. Such punishment is decided by the police and thus is contradictory to Article 8, Paragraph 1, of the Constitution, similar to the situation of the former interpretation. Those procedures relating to correction and learning living skills in a specific place, as well as detention and forced labor, shall be decided in a court under legal procedure. The procedures under the existing law will be null and void after July 1, 1991, and the relevant laws have to be revised by that date. The Interpretation No. 166 has to be complemented.

Translated by Professor Tsung-fu Chen.

 

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