According to statistics, the frequency with which the Constitutional Court ("Court") declared a statute void from a specified date (“dated void declaration”) is over 50% in the past seven years. Dated void declaration is thus the most typical form of interpretation of the Court. Whenever a statute is declared as violating the Constitution, a new suit may be brought for further remedy. However, it is controversial whether a remedy available owing to a dated void declaration can be asserted before the date specified. Though the administrative courts have found such cases should not be entertained, Interpretation No. 725 of the Court overturns such findings. Interpretation No. 725 can be summarized as follows:
I. The Nature and Elements of Interpretation No. 725
Interpretation No. 725 indicates that when there may be a serious impact or a lack of appropriate law to govern if a statute is declared void, the Court may consider rendering a dated void declaration. Because a dated void declaration injects uncertainty into a subsequent application for remedy, to avoid it, the applicant should consider explaining in the constitutional interpretation petition how a serious impact or lack of appropriate law to govern the situation will not be occasioned if the statute is declared void.
II. The Party That Receives the Dated Void Declaration Is Guaranteed a Further Opportunity to Bring a Suit for Remedy
Interpretation No. 725 is primarily to nullify the administrative courts' decisions that a party is not entitled to petition for retrial or other similar forms of remedy in the event of a dated void declaration. The courts cannot refuse to hear the case by simply reasoning that the statute is still valid under the dated void declaration.
III. The Court's Specification of Remedy
Interpretation No. 725 specifically states: “In order to provide remedies to the party that has petitioned for a constitutional interpretation, if the Court specifies the remedy, such remedy should be adopted; if the Court fails to give indication, the courts should wait and not adjudicate until the new law is promulgated and effective.” According to Grand Justice Chen Sin-Ming’s concurring and dissenting opinion, the Court’s specification of the remedy should at least cover:
- The remedy procedure
- The remedy method
- The term of remedy
- The jurisdiction for the remedy (e.g., the suit should be brought before the Criminal Court, as indicated by Interpretation No. 720)
- The substantive criteria for reviewing the case (e.g., Article 416 should be applied as indicated by Interpretation No. 720)
- The scope of the remedy (i.e., governing the current case only or governing all similar cases)
Because of the predominance of dated void declarations and the latitude Interpretation No. 725 gives to the Court to award remedies, to request that the Court hand down a declaration with a specific remedy, the party should state and recommend how the case can be remedied in the “statement of claim” in the constitutional interpretation petition for the Court’s reference.
Finally, Article 500 of the Civil Procedural Code, Paragraphs 4 and 5, Article 276 of the Administrative Litigation Law, and Article 22 of the Criminal Compensation Act all prohibit a retrial if the final judgment has been confirmed for over five years. The retrial petitions of many parties petitioning for a constitutional interpretation are often rejected on the grounds of the five-year limit since the time the Court takes to review the case is counted in calculating the time limit. Grand Justice Tang Te-Chung stated in his concurring opinion that Interpretation No. 725 should declare “the time from the filing of the petition to the time this Interpretation is received by the petitioner shall not be counted as part of the statutory retrial petition time limit” to facilitate a petition for a retrial.
Since the Bill of Amendment to Constitutional Court Review Case Act has not been confirmed and ratified by the legislature, and the Articles of Civil Procedural Code, Administrative Litigation Law, and Criminal Compensation Act are still valid, to avoid exceeding the five-year time limit, the petitioner should request that the Court declare “the time from the filing of this petition to the petitioner's receipt of this Interpretation shall not be counted as part of the statutory retrial petition time limit” when drafting a petition for a constitutional interpretation.
Interpretation No. 725 overturns the erroneous opinions of the courts that the courts should reject a case because the law is still valid if the petition is based on a dated void declaration. This Interpretation officially grafts the constitutional interpretation procedure onto the public litigation procedure. The remedy specification referred in this Interpretation also demonstrates that the constitutional litigation is gradually maturing, and the discussions and suggestions in the concurring and dissenting opinions of this Interpretation may prove to be instructive to an applicant intending to obtain a constitutional interpretation.