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(釋字第 443 號 )      友善列印PRINT  
Interpretation

J.Y.
Interpretation

NO.443 

Date

1997/12/26

Issue

Are the Regulations for Exit of Draftees promulgated by the Executive Yuan under no proper authorization to restrict a draftee from applying for an exit permit to take a trip abroad unconstitutional due to its lack of the said requirements?

Holding

  It stipulates in Article 10 of the Constitution that people are free to choose their residences and to move freely. This is to protect the right of the people to move or travel freely. Any limitation on the people's freedom or rights shall meet the “necessity” standard stipulated in Article 23 of the Constitution and be regulated by laws or rules made by administrative institutions authorized by legislative authority. The limitation on draftees on departure from the country is a major limitation on the people's freedom to choose their residences and to move freely. Nevertheless, such limitation is not regulated in the Conscription Act and the Enforcement Act of Conscription Act, nor is it authorized to be made in administrative rules. The Conscription Regulations promulgated by the Administrative Yuan authorizing the Ministry of Interior to establish the Regulations for Exit of Draftees lack the authorization of law. The concerned matters listed in Article 8 of the Regulations limiting the departure from the country of eligible males are in violation of the Constitution and shall become void within 6 months from the date of this Interpretation.

Reasoning

  The range of freedom and rights of the people stipulated in the Constitution is very broad. Any freedom and right, which is not in contravention of the order of the society and the public interest, is protected by the Constitution. Nevertheless, not every freedom and right is protected in the same way in the Constitution. The physical freedom of the people is stipulated in detail in Article 8 of the Constitution, in which those rights reserved in the Constitution shall not be limited even by the legislative authority (See J. Y. Interpretation No. 392), whereas freedom and rights under Articles 7, 9-18, 21 and 22 may be limited by the law upon meeting the conditions stipulated in Article 23 of the Constitution. The determination of which freedom or right shall be regulated by law or by rules authorized by the law shall depend on regulated intensity. Reasonable deviation is allowed considering the party to be regulated, the content of the regulation, or the limitations to be made on the interests or freedom. For instance, depriving people's lives or limiting their physical freedom shall be in compliance with the principle of definitiveness of crime and punishment and stipulated by law; limitations concerning people's other freedoms shall also be stipulated by law, in the case where there is authorization by the law to the administrative institutions to make supplemental rules, the authorization shall be specific and precise. The competent authority, on the ground that such limitations shall not be inconvenient for the people, may make only those limitations concerning details and technical matters of law enforcement. For policies concerning benefit to the people, the law governing such policies may be constructed more loosely compared to laws governing limitations on people's rights. Nevertheless, in the case where such policies are related to major public interests, they shall be made by law or rules authorized by law.

  It stipulates in Article 10 of the Constitution that people are free to choose their residences and to move freely. This is to give people the freedom to choose their residences, to enjoy their lives without intrusion, and to move or travel based on their free will. According to Article 23 of the Constitution, limitations on such freedom shall be made by law and in such case shall be necessary. In addition, the stipulation of Article 20 of the Constitution that draftees have the obligation to serve in the military in accordance with law shall have the implication that major matters concerning their military service shall be made by law or rules specifically authorized by law. There are no clauses in the Conscription Act and the Enforcement Act of Conscription Act limiting draftees from leaving the country. In addition, Article 45 of the Enforcement Act of Conscription Act only authorizes the Administrative Yuan to promulgate the Conscription Regulations and does not have any clause authorizing the administrative institutions to promulgate regulations concerning matters by their nature limiting the freedom of people’s movement, e.g., prohibiting draftees from leaving the country. Further, there is no stipulation permitting the Administrative Yuan to authorize the Ministry of Interior to establish the regulation. As a result, though the purpose of Article 8 of the Regulations for Exit of Draftees, which is authorized by Article 18 of the Conscription Regulations, is to prevent draftees from evading their military service obligation, it constitutes a major limitation on the people's freedom and is in contravention of the Constitution and shall become void within 6 months from the date of this Interpretation.

' Translated by Chi-chang Yu.

 

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