The principle of proportion, to be a measurement of examining whether a sanction violates the Constitution or not, can be divided into three sub-principles including: (1) the principle of appropriateness; (2) the principle of necessity; (3) the principle of proportion in a narrow sense. In a criminal legislation, the principle of appropriateness represents the meaning of ‘arbitrarily punishment prohibition’, the principle of necessity represents the meaning of ‘a humble punishment’, and the principle of proportion highlights a spirit that a punishment may correspond the principle of appropriateness but still needs to view whether the punishment is too sever. It is so-called ‘a severe punishment prohibition’.
According to the Constitutional Interpretation No. 531, the Article 62 of the Road Safety Act is on the aim of protecting traffic safety as well as road users’ life, personal safety and property. Schünemann, a criminal jurisprudence scholar, expressed that the crime of hitting-and-running in Taiwan Criminal Act is similar to Article 142 of the Germany Criminal Act. It may not violate the Constitution, however, it may be near to violate the Constitution.
Suie (2000) expressed that it has violated the Constitution. Followings are on the view of committing a hit-and-run offence and being punished by ALLR, to explore the relationship of ALLR and the Constitution.
4.1 The relationship of ALLR and the privilege against self-incrimination
The Road Safety Act Article 62 requires the accident driver must report to the police, it is so-called ‘the obligation of introduce’ or ‘the obligation of report’. The driver can’t leave the scene; in the case of leaving the scene, he/she must return to the scene, it is so-called ‘the obligation of return’. All these obligations are not corresponding to the principle or trend of the Constitution. This principle in American is so-called the Privilege Against Self-incrimination, or “no person shall be compelled in any criminal case to be a witness against himself”. According to the Constitution of Germany, this principle is included in
human dignity and to ruled by the law (Schünemann, 2000). Hiding and escaping after committing a crime is a legal behavior, which permitted by the Criminal Act in most of countries (Suie, 2000). Most of jurisdiction systems in the world are similar that guilty or no guilty is triggered by the procuratorial organ to investigate and sentence by the court or jury. A suspect to seek a non-guilty sentence for his/her commitment is extremely normal and legal.
Thus, the concept that the State cannot compel a suspect to proof himself and be guilty is largely implemented in most of developed countries. For example, the Constitution of America Article 5 states: “No person shall be compelled in any criminal case to be a witness against himself. Except for a suspect is willing to make a statement, the State can not compel a suspect to make a statement; while the State compels a suspect to make a statement, the suspect has the right to reject”. It is so-called ‘the right to silence’ (Wang, 1999). It is a concrete manifestation of ‘the privilege against self-incrimination’. Moreover, in the modern countries such as the United Kingdom, America, Japan, Germany and Singapore…etc., before the State or authority declaring the suspect has the right of silence, the suspect’s statement has no the power of evidence. In other words, in the case that the State or authority doesn’t inform the suspect has the right of silence; the State or authority cannot use such evidence to against the suspect (Ju, 1994).
Using ‘the obligation of introduce’ or ‘the obligation of return’ to compel a crash driver provides the information which may cause a burden on such driver. If such information is only used to issue a fine in a traffic violation, it may not against ‘the principle of the privilege against self-incrimination’. However such information may be used in a criminal case e.g.
desertion, attempted homicide, hit-and-run, innocent homicide and innocent hurt…etc. And it may lead to a situation that the State triggers a suit procedure to prosecute for crash driver's criminal liability (Schünemann, 2000). It may violate ‘the principle of the privilege against self-incrimination’.
4.2 The relationship of ALLR and the principle of equality
To request a hit-and-run offender stay at the scene and report to the police may violate
‘the principle of the privilege against self-incrimination’, such offender may not be treated equitably while comparing with other serious crimes. In other words, such offender may be discriminated (Hsu, 2000). In a crime of homicide, hurt, arson…etc., the victims usually need to be rescued from an emergent situation. However, the Criminal Act never requests such offender stay at the scene, report police, and rescue the victims. Moreover, there is no other punishment while offender violates such obligations. The Road Traffic safety and Penalty Act Article 62 compels the driver who involves a crash shall stay at the scene ant report to the police. Comparing these serious offences, a crash is a minor offence and usually owing to neglect but not a deliberate intention. Thus, to request a minor wrongful offender more and a serious illegal offender less may violate the principle of equality.
4.3 ALLR and the principle of propriety
Directly to restrict people’s basic rights such as the right of freedom, the right to work and the right of property shall explore whether these restrictions consist with the content of the Constitution, Article 23. Although the Constitutional interpretation No. 531 is of the opinion that the Article 62 of the Road Traffic Safety and Penalty Act is on the aim of enhancing traffic safety, protecting normal users’ profit and maintaining social order and doesn’t violate the Constitution Article 23. However, whether such sanction has effects on enhancing traffic safety is still unclear, opinions vary by different jurists. He who holds a negative opinion usually thinks there is no relationship between stay at the scene and traffic safety promotion. While a driver be noticed that he/she will be punished for involving a crash and running. It may make them stay at the scene and report to the police, however, it seems have no relationship with operating vehicle carefully. An arbitrary punishment usually come from the concept of a rigorous penalty is effective in troubled times. In realty, the level of
punishment usually has no relationship with the incidence of crimes. Therefore, the concept of using a criminal punishment to pre-deter an illegal behavior may lack of conviction. In other words, to increase the criminal punishments is useless for decreasing a crime incidence (Lin, 1995). Except this, from the number of ALLR cases in resent years, it also didn’t show that such punishments have positive relation with the principle of corresponding with the aim.
4.4 ALLR and the principle of necessity
To restrict people’s basic rights directly except needing to accord the Constitution Article 23, another important requirement is to fit the principle of necessity. If a behavior certainly will endanger the social order seriously, it is needed to consider adopting administrative sanction first, before using criminal penalty (Lee, 2000). To adopt criminal penalty untimely usually may violate the principle of differentiation between the jurisdiction and administration (Lee, 2001). Adopting a criminal penalty by a serious incarceration only exists in German, Taiwan and few other countries. If the Criminal Act Article 185-4 is on the aim of protecting public profits and avoiding public danger, therefore, any crash offence no matter the victims dead/injury or not, the driver can’t leave the scene. In other words, the essence of causing death or injury in the Road Traffic Safety and Penalty Act Article 62 is a wrong arrangement (Lin, 2000). If the sanction is on the aim of protecting the life or body of the victim, there is no necessity of rescuing in a fatal crash case. Moreover, to protect the profit of life of body, there have crime penalties of desertion, attempted homicide, innocent homicide and innocent hurt. It seems no need to legislate a crime penalty of hitting-and-running. In the item of causing injury, it is hard to discriminate whether the injury is manifest or not. For example, is a scrape or bruise an injury? There are various injuries may happen in a traffic crash, however, it lacks a clear definition of injury. Thus, revoking a driver’s license depend on ‘injury’ may violate the principle of necessity.
4.5 ALLR and the principle of proportion
To condemn a hit-and-run offence is for the reason that the offender violates the obligation of rescuing or breaks a traffic ethics. Nevertheless, to condemn a desertion in a fatal crash is meaningless; even in an injury crash, the victims usually have abilities to seek help and may not have the problem of desertion. Therefore, the crime of desertion actually only exists in the situation of serious injury. However, to revoke a driver license regardless these different reasons seems violate the principle of proportion. Except this, in the case of no fatality or injury crash, the driver can avoid the sanction of hitting-and-running also seems violate such principle (Lin, 1999). In General, on the viewing point of condemning a crash driver stay at the scene but fail to control the scene and avoid possible consequent crash shall be treated equitably. Most of accidents are owing to neglect but not intention. A driver who causes somebody hurt and leaves the scene owing to careless is not rare. Even the driver who knows the accident occurred but leave the scene for the reasons of scaring or panic are also commonly happened. To revoke such drivers’ license a certain period may be proper and effective. However, to revoke such drivers’ license whole lifetime may violate the proportion principle of constitution.