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高雄律師-楊岡儒律師【法學英文選讀(9)】性交易行為之處罰與兩性平等(Penalty for Sexual Transactions & Gender Equality)


2010.5.8    高雄律師-楊岡儒律師














兔寶寶律師  謹筆


























J. Y. Interpretation No.666




The principle of equality prescribed by Article 7 of the Constitution does not mean absolute and mechanical equality in formality, but is for the protection of substantive equal status under the law, which requires matters identical in nature be treated and handled identically without being subjected to differential treatment arbitrarily or for no proper justification. When a law imposes administrative penalties to carry out certain legislative purpose so that the selection of target to be penalized results in differential treatment, it has to have substantive nexus with the legislative purpose in order not to violate the principle of equality.




Article 80, Section 1, Sub-section 1 of the Social Order Maintenance Act (hereinafter the disputed provision) provides that any individual who engages in sexual conduct or cohabitation with intent for financial gains is punishable by detention not more than three days, or by a fine not more than NT$30,000. Its legislative purpose is to maintain protect public health and social morals (see The Official Gazette of the Legislative Yuan, vol. 80, no. 22, p. 107). According to this provision, only those who intent for financial gains are subject to penalties, but not the ones who provide the consideration on the other side.




Whereas how to regulate and whether penalty is warranted for sexual transactions is within the confines of legislative discretion, the Social Order Maintenance Act chooses to take administrative penalties as the control measure, with the disputed provision expressly prohibits sexual transactions, imposes penalties only against those who engage in sexual transactions with the intent for financial gains, but not the opposite parties who provide consideration. In addition, by adopting the subjective intent for financial gains as the standard for penalties, a differential treatment has legally been created. Given that the legislative purpose of the disputed provision is to maintain citizens’ health as well as ordre public and morality, and that a sexual transaction require the joint acts between one party having the intent for financial gains and the opposite party who provide consideration, although there is a distinction between the two in that the former is likely to engage in continuous acts which result in uncertain and extended sex partners, such factual and experiential differences does not alter the innate character that a sexual transaction is completed through their joint acts, and not sufficient to justify the differential treatment in imposing penalties while both sides ought to be legally evaluated with consistency. Moreover, since the disputed provision does not consider the party who provides consideration culpable yet penalizes the party having the intent for financial gains, in light of the fact that the gender of the latter is more likely to be female, it virtually amounts to a control that only target and punish those females participated in sexual transactions. Particularly for some of the socially and economically disadvantaged females who engage in sexual transactions, their already miserable situations are often further aggravated by the penalties of the disputed provision. The disputed provision that uses subjective intent for financial gains as the standard for differential treatment on the imposition of penalties apparently does not have substantive nexus with the legislative purpose stated above, and naturally violates the principle of equality prescribed by Article 7 of the Constitution.




In order to carry out the legislative purpose of maintaining citizens’ health as well as ordre public and morality, the government agency may implement different kinds of management or counseling measures for those engage in sexual transactions with the intent for financial gains in accordance with the law such as physical examinations or safe sex awareness; may also provide job training, career counseling or other educational methods to enhance their work capacity and economic condition so that it is no longer necessary [for them] to use sexual transactions as the means for livelihood; or adopts other effective management measures. Other than providing the most possible protection and assistance to the socio-economically disadvantaged people, in order to prevent sexual transaction activities from [negatively] impacting on third party’s interests, or to avoid sexual transaction activities infringing on other important public interests, the State may, when necessary to restrict sexual transactions, enact statutes or authorize the promulgation of regulations to provide reasonable and precise rules to control or penalize. Given that this requires substantial time for careful planning, the disputed provision shall cease to be effective no later than two years from the issuance of this Interpretation.


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