Wed, May 22, 2013 - Page 8 News List

Laws need comprehensive review

By Hsu Tze-tien 許澤天

An earlier article (“Time to review bribes, ‘mediation,’” May 11, page 8) pointed out that the legal interpretations used in the corruption case against former legislator and Executive Yuan secretary-general Lin Yi-shih (林益世) need not have invoked the notion of “actual influence,” which different people interpret in different ways. The article said it would have been perfectly possible to judge that Lin accepted bribes “by an act that belongs to the official duties,” without resorting to “actual influence.”

Let us consider the court’s interpretation of what is meant by accepting bribes “by an act that belongs to the official duties,” as mentioned in Articles 121 and 122 of the Criminal Code and Article 4, Paragraph 1, Subparagraph 5 and Article 5, Paragraph 1, Subparagraph 3 of the Anti-Corruption Act (貪污治罪條例). For one thing, it is not required for such an act belonging to an official’s official duties to have actually happened, still less for such an act to have resulted in breaking of the law.

Furthermore, it is not required for an unlawful agreement between the person offering a bribe and the one receiving it to explicitly state how the action is to be carried out or how the payment is to be delivered.

If the two sides were required to state exactly how the official was going to exercise his or her official duties, then in future anyone who wanted to pay money for favors could get away with it by simply having an unspoken understanding.

When Chen Chi-hsiang (陳啟祥), the owner of Ti Yung Co, gave Lin a big sum of money and talked with him about winning a contract, did the two of them not have an unspoken understanding about how the contract was to be arranged? Would anyone expect Chen to tell Lin how to do his job as legislator and secretary-general?

Who was Lin, after all? First, he was a legislator who could question and supervise officials, and then he became Executive Yuan secretary-general, giving him the authority to intervene in the administrative functions of the Cabinet.

Both Lin and Chen understood this perfectly well, and Chen was also very precise and clear about what he wanted Lin to do for him, so can anyone really claim that Chen’s payment had nothing to do with Lin’s official duties and was just an everyday exchange of gifts and favors?

If so, the gift was rather a generous one. When Chen gave the money to Lin to get him a contract with a state-run company — China Steel Corp — could he really have thought of Lin as just a gangster whose actions would have nothing to do with his official duties?

Did Lin really think of himself as no more than a gangster? Hardly so, especially considering that Lin used his official powers to fix the deal.

The main reason why the verdict in Lin’s case has attracted so much criticism is probably because its interpretation of the facts of the case is simply too outlandish. The judges determined that their interpretation of the facts must be based on free evaluation of evidence through inner conviction, and that the law could not determine in advance the strength of the evidence in this case, while their evaluation of the evidence still had to comply with the empirical doctrine, or rules of experience and logic, as specified in Article 155 of the Code of Criminal Procedure (刑事訴訟法).

Had they not done so, they would have made themselves a laughing stock among legal experts.

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