The Criminal Code has been the topic of much debate since a verdict was handed down in the case against former Executive Yuan secretary-general Lin Yi-shih (林益世), especially Article 121, which covers bribery and mentions “demands, agrees to accept, or accepts a bribe or other improper benefits for an official act.”
Executing an “official act” presupposes that the person holds an official position. Taking a bribe is punishable because such an act causes the public to lose trust in the nature and purpose of that position, which has a major impact on policy implementation. Taking bribes in exchange “for an official act” does not require the to have already taken effect and it has nothing to do with whether the act violates the duties that come with the position.
If the judge solicits a bribe from a defendant, that judge commits a criminal offense simply by soliciting the bribe, regardless of whether the judge has issued a verdict or given the law an arbitrary interpretation. However, if a judge who is not involved in the trial at hand or another civil servant asks the defendant for a bribe in order to influence the trial judge on the defendant’s behalf, while damaging to the image of their official position, such behavior does not constitute the execution of “an official act.”
In terms of a civil servant taking bribes to mediate in matters that do not fall within the scope of their powers, it is probably necessary to clarify the premises for the punishment of such behavior and the application of relevant regulations, but we cannot let the ambiguous “actual influence” concept replace the current standard for determining that a bribe has been taken, ie, the requirement that it be done in the execution of an official act.
If we do not do so, anyone can have their own interpretation of what “actual influence” means, and that will destroy the implications of Article 1 of the Criminal Code, which says that an action is only punishable if punishment was expressly prescribed by the law at the time when the action occurred.
In addition, violating the human rights of someone involved in a case will destroy public trust in a fair and unbiased enforcement of the law. This is why public trust in the judiciary and the rule of law was the first victim when the “actual influence” concept was established during the trial of former president Chen Shui-bian (陳水扁). The case against Lin has brought renewed attention to this issue.
However, Lin’s case differs from that of Chen’s, since it is possible to infer his guilt even without the use of the “actual influence” concept. Lin was a legislator, and if a legislator were to use his or her rights to monitor and question government officials to solicit a bribe, that would constitute taking a bribe for the execution of an official act.
As to whether monitoring and questioning the Ministry of Economic Affairs lay within the scope of Lin’s powers as Cabinet secretary-general, and whether the ministry made personnel adjustments at state-run China Steel Corp on Lin’s request has nothing to do with whether a criminal offense was committed. The question of whether China Steel is a state-run or a private company is also completely irrelevant to determining whether a bribe was taken.
There was a mistake in the verdict when Lin’s role was defined as that of someone who took bribes while acting as a go-between. The result was that the debate focused on whether Lin had wielded actual influence over government institutions’ or civil servants’ official decisions or discharge of official duties.
This was clearly a mistake that requires review and discussion.
However, it would be more worthwhile to discuss if legislators should give serious consideration to whether civil servants should be punished for “mediation.” If they should, laws should be written to resolve the issue, and legislators should not procrastinate over the issue.
Hsu Tze-tien is an associate professor in the College of Law at National Cheng Kung University.
Translated by Perry Svensson
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