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大法官解釋表頭

(釋字第 497 號 )     友善列印PRINT  
 

J.Y.
Interpretation

NO.497 

Date

1999/12/3

Issue

Is the regulation enacted by the Ministry of the Interior constitutional in specifying the qualifications, conditions, permission procedure, and length of stay for people from mainland China who apply for entry into the Taiwan area?

Holding

  The Act Governing Relations between People of the Taiwan Area and Mainland Area (hereinafter the”Act”), promulgated on July 31, 1992, is enacted in accordance with Article 10 of the Amendment to the Constitution promulgated on May 1, 1991 (presently Article 11 of the prevailing Amendment to the Constitution), which states: "Rights and obligations between the people of the Chinese mainland area and those of the free area, and the disposition of other related affairs may be specified by law." It is a special law governing the rights and obligations between the peoples of the Taiwan area and the Mainland area prior to the reunification of the nation. As authorized by Articles 10 and 17 of the Act, the Ministry of the Interior has enacted the Regulations Governing the Entry Permission to Taiwan Area for the People from Mainland China and the Regulations Governing Permanent or Temporary Residence Permission for the People from Mainland China, which Regulations stipulate the qualifications, conditions, permission procedure and length of stay concerning the entry of said people into the Taiwan area, are to protect the security and welfare of the people of the Taiwan area, and are in accordance with the legislative purpose of the Act. It is essential to maintain the social order and to advance the public welfare; hence, such Regulations conform to the aforesaid Article of the Amendment to the Constitution, are within the scope of the delegation by such Act and are not in violation of said Amendment and Article 23 of the Constitution.

Reasoning

  Although Article 10 of the Constitution stipulates that the people shall have freedom of residence and change of residence, such freedoms may be restricted by law in order to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain the social order or to advance the public welfare pursuant to Article 23 thereof. In addition, Article 10 of the Amendment to the Constitution, promulgated on May 1, 1991 (presently Article 11 of the prevailing Amendment to the Constitution) states: "Rights and obligations between the people of the Chinese mainland area and those of the free area, and the disposition of other related affairs may be specified by law." Promulgated on July 31, 1992, the Act Governing Relations between People of the Taiwan Area and Mainland Area has been enacted in accordance with said Article 10. It is a special law governing the rights and obligations between the peoples of the Taiwan area and the Mainland area to ensure the security and public welfare of the Taiwan area before the reunification of the nation. If delegation by the legislative to the executive branch to implement the law by ordinance concerns the freedoms and rights of the people, the purpose, scope and content of such delegation should be explicit and concrete. If the legislature only makes a general delegation, construction of the legislative intent should be made from the related meanings of the entirety of the law, not being restricted by the respective characters in the specific provision of law (See Interpretation No. 394). According to said Article 10, "Unless permission is granted by the competent authority, no people of the Mainland area may enter the Taiwan area. (Paragraph 1)"; "People of the Mainland area who have entered the Taiwan area by permission may not engage in any activity or take up any job inconsistent with the purposes for which the permission was granted. (Paragraph 2)"; "Rules governing the granting of the permission, referred to in the two preceding paragraphs of this Article, shall be formulated by the competent authorities concerned and promulgated after approval by the Executive Yuan. (Paragraph 3)"; Article 17, Paragraph 1, "In any of the following situations, any people of the Mainland area may apply for residency in the Taiwan area: 1. Being the spouse of any citizen of the Taiwan area and married for two years or more or having given birth to a child or children. 2. Residency being deemed truly necessary by the competent authorities of our political, economic, social, educational, scientific, technological or cultural consideration"; Paragraph 7 (now Article 17, Paragraph 8), "Rules governing the granting of permission for residency or permanent residency, referred to in the immediately preceding Article and Paragraph 1 of this Article, shall be formulated, respectively, by the Ministry of Interior in conjunction with the competent authorities concerned and promulgated after approval by the Executive Yuan.", and Article 18, Paragraph 1, Subparagraph 2, any people of the Mainland area who entered the Taiwan area may be deported therefrom by the police and the security authorities if such people have entered the Taiwan area by permission but stayed beyond the authorized duration. On February 8, 1993, the Ministry of the Interior in Tai-(82)-Interior-Police- No.-8273466 promulgated the Regulations Governing the Entry Permission to Taiwan Area for the People from Mainland China and in Tai- (82)-Interior-Police- No.-8273459, the Regulations Governing Permanent or Temporary Residence Permission for the People from Mainland China, wherein the qualifications, conditions, permission procedure and length of stay concerning the entry of the people of the Mainland area into the Taiwan area are clearly set forth. Essential to maintain the social order and to advance the public welfare, these regulations are to protect the security and welfare of the people of the Taiwan area. They conform to the legislative intent of the aforesaid Act and are within the scope of the delegation. Therefore, the above regulations are not in violation of the Amendment and Article 23 of the Constitution.

' Translated by Professor Fuldien Li.

 

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