Wed, May 22, 2013 - Page 8 News List

Laws need comprehensive review

By Hsu Tze-tien 許澤天

The verdict’s analysis of what is meant by “acquiring valuables or property through the use of undue influence [or] blackmail,” as described in Article 4, Paragraph 1, Subparagraph 2 of the Anti-Corruption Act, also comes as something of a surprise.

Although the verdict holds, with regard to the facts of the case, that the defendant employed intimidation to ensure that a third person or party obtained benefits in the form of the signing of a contract, it also holds that, since these were not “material valuables,” it did not constitute the aforementioned crime, but was merely an offense of taking advantage of his authority, opportunity, or means afforded by his official position to profit through extortion, as described in Article 346, Paragraph 2 and Article 134 of the Criminal Code.

What people find incomprehensible is why “valuables” have to be limited to “material” things.

When lawmakers used the phrase “bribes or other unlawful profits” in their definition of the crime of bribe-taking, they needlessly provided for separate categories of “bribes” and “other unlawful profits,” whereas the former naturally includes the latter, and the latter is merely a reminder or even a redundant addition.

If one day Taiwanese lawmakers were to realize this redundancy and delete the words “or other unlawful profits,” surely that would not mean that they thought that “immaterial” gains could not be called bribes.

When university professors were found to have claimed expenses by presenting “fake” receipts, doubts arose as to whether they belonged to the category of authorized public officials. In relation to the professors’ case, the rule expressed in Article 5, Paragraph 1, Subparagraph 2 of the Anti-Corruption Act about “fraudulently making others deliver personal property or a third person’s property under cover of legal authority,” the term “property” is much more specific than “valuables,” and it even has to be “delivered.”

However, what verdict ever said that transfers of funds carried out by bookkeepers or accountants merely caused the amount of money in professors’ bank accounts to increase, and were not the delivery of property?

An even clearer example is the corruption case involving former Chinese Nationalist Party (KMT) legislator Ho Chih-hui (何智輝). Ho used his powers as a legislator to pressure the National Science Council and its Science Park Administration to pay out cash incentives to the Taiwan Tea Corp, and then diverted money from Taiwan Tea for his own private use.

The charge on which Ho was found guilty was that of using his power as a public official to extort valuables or property. Although Ho’s own illicit gains were not actually the “material property” in question, the verdicts of the courts that heard his case, including the Supreme Court, did not deny that they could be defined as valuables. So, even if one leaves theory aside and merely deals with the facts, the way the verdict in Lin’s case was formulated is surprising.

The principle of legality, which holds that a person may only be punished for an act that is defined by law as a punishable offense, must be respected. Only a reasonable interpretation can ensure that this principle continues to be effective.

Unreasonable interpretations will cause people to doubt whether they should believe in and adhere to the principle of legality, and to doubt the credibility of the judiciary.

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