13 April 2021
The Supreme Court rendered the 109-Tai-Kang-Da-724 Ruling of November 25, 2020 (hereinafter, the “Ruling”), holding that if a legal question submitted to the Grand Chamber of the Supreme Court has been interpreted by the Grand Justices of the Judicial Yuan, the Supreme Court shall be bound by the interpretation and reject the submission.
Under Article 51-2 of the Court Organization Act, when the Criminal Division of the Supreme Court reviews a case, and deems, after deliberation, that the legal opinion adopted as the basis for the decision is dissenting with the legal opinion for previous decision, it should, after consulting with other divisions, by a ruling submit the case to the Grand Criminal Chamber of the Supreme Court for a ruling. According to the facts underlying this Ruling, since the Criminal Division of the Supreme Court, which made the submission, concluded, when trying a case in which the interlocutory appellant stated an objection concerning the criminal offense in violation of the Narcotics Elimination Act, that the legal opinion to be relied on as the basis of the ruling is different from that for the previous ruling, a submission was made to the Grand Criminal Chamber for a ruling.
In the Ruling, Grand Criminal Chamber of the Supreme Court stated that Judicial Interpretation No. 185 of the Judicial Yuan provides that interpretations rendered by the Judicial Yuan in accordance with Article 78 of the Constitution shall be binding upon every agency and person of the nation, and agencies shall follow the gist of the interpretations in handling relevant matters.
It was further indicated in the Ruling that to address the interpretation of the text of Article 78, Paragraph 1 of the Criminal Code, which is the core legal issue of the submission, the Judicial Yuan rendered on November 6, 2020 Judicial Interpretation No. 796, which provides: “Article 78, Paragraph 1 of the Criminal Code provides: ‘During the period of parole, if the offender has committed another offense that carries an imprisonment or a more severe punishment, the parole shall be revoked within six months after the judgment is announced.’
Regardless of any specific circumstance concerning whether a person on parole is subject to imprisonment with probation or imprisonment of not more than six months and whether such person should be imprisoned again to carry out the remainder of the prison term due to any special preventive consideration, if the parole is revoked simply because the person’s offense is subject to an imprisonment or a more severe punishment to the extent that the person on parole who is subject to imprisonment with probation or imprisonment of not more than six months without any special preventive consideration is imprisoned again to carry out the remainder of the prison term, the means within such a scope are not necessary with respect to the ends to be achieved, violate the principle of proportionality under Article 23 of the Constitution and the gist of protecting personal freedom under Article 8 of the Constitution and should be void from the day the judicial interpretation was released.
This interpretation is tantamount to changing the first part of Article 78, Paragraph 1 of the Criminal Code, and the Supreme Court should also be bound by such interpretation. Since the legal question for this submission has been included in existing judicial interpretations, there is no need to submit the case for unifying legal opinions, and this submission should be rejected.
For further information, please contact:
Jenny Chen, Lee Tsai & Partners
lawtec@leetsai.com
