Sun, Apr 29, 2012 - Page 8 News List

Loopholes in law are no excuse for inaction

By Wu Ching-chin 吳景欽

Late last month, the Supreme Court finalized the verdict for former independent legislator Lo Fu-chu (羅福助), sentencing him to four years in prison for stock manipulation, forgery and money laundering under the Securities and Exchange Act (證券交易法) and the Business Accounting Act (商業會計法).

Lo did not report to the Taipei District Prosecutors’ Office to begin serving his term on Tuesday, and he has yet to show up, providing yet another example of an offender escaping judicial punishment. Prosecutors claim that this is a result of the law’s imperfections, but is that really true?

Going through the length of Taiwan’s criminal trial process with an initial trial and two appeals levels usually takes a very long time, from four to more than 10 years. Since a defendant cannot be detained indefinitely, they are unlikely to be in custody when the verdict is finalized, which creates the problem of how to ensure that verdicts are carried out.

Because a case is closed when judgement has been finalized, the Code of Criminal Procedure (刑事訴訟法) only deals with the prevention of escape prior to the final judgement. Based on the principle of legal restraint, prosecutors cannot reason by analogy and apply the preventive measures to defendants after the final judgement has been given. This has created a serious legal loophole that offenders may feel tempted to exploit.

Indeed, this legal shortcoming is a reason why some political and business “celebrities” have managed to abscond judicial punishment, but the governing authorities should not use this as an excuse to escape responsibility. It is not a new problem. There are countless previous examples, including former Pingtung County commissioner Wu Tzer-yuan (伍澤元), business tycoon Wang You-theng (王又曾) and former Control Yuan member Chu An-hsiung (朱安雄).

Prosecutors and police should have learned from experience and come up with a solution to this problem. If they always pass the buck by pointing to the incomplete law instead of reviewing the situation, Lo will not be the last to escape judicial punishment.

Even if the authorities believe that the incomplete system is the cause of the problem, the continued repetition of such cases should force them to take action and propose an amendment to the law to get rid of the loophole. For example, they could change the law to impose compulsory supervision and control of offenders whose sentences have been finalized.

Also, they could look to the Sexual Assault Crime Prevention Act (性侵害犯罪防治法), which allows the authorities to monitor and control both probationers and parolees using technical equipment. They could extend this approach to criminal defendants prior to their final judgement. All these are tasks that should be implemented promptly.

Unfortunately, although the governing authority, the Ministry of Justice, is aware of the problem, it has dealt with it passively. It simply blames the incompleteness of the law whenever a case like this occurs. Such behavior will only further damage public trust in law enforcement.

Wu Ching-chin is an associate professor in the Department of Law at Aletheia University.

Translated by Eddy Chang

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