Wed, May 22, 2013 - Page 8 News List

Laws need comprehensive review

By Hsu Tze-tien 許澤天

The interpretation, in other words, should be proportionate.

Judges in this country should not allow their judgments to be colored by political concerns.

However, that does not mean that their legal arguments with respect to individual cases are always appropriate. All that is necessary in the Lin case is for controversial points to do with relevant laws to be clarified; there is no need to cause too much political inference.

People should learn a lesson from the verdict in the Lin case, which is that reasonable and proportionate legislation and legal interpretations are fundamental for a country under the rule of law. Everyone should support education in the field of law, so that it can continue to foster outstanding talent to work in the legal field. If this is not done, and Taiwan stays at its present level in academic jurisprudence, then judgments emanating from courts in Taiwan, which is still a latecomer as far as the study of law is concerned, will continue to be marked by a high incidence of misapplication of the law.

The Anti-Corruption Act is in need of further amendment. Preferably, it should go back to the terms of the Criminal Code, to avoid needless duplication and avoid undermining the entire value system of the nation’s criminal law, as well as the public’s sense that justice is served and the penalty fits the crime.

Above all, draconian punishments are of no help in preventing and fighting corruption, and indeed they make it hard to prosecute corruption cases in the right way. They can easily lead to the law being applied and evidence evaluated is such a way as to narrow the circumstances under which the accused may be found guilty on corruption charges, and, even when people are found guilty, they can lead to the improper application of Article 59 of the Criminal Code regarding discretionary reduction of punishment, which was originally intended to only apply in extremely exceptional cases.

As to what happens when public officials receive bribes in relation to matters over which they have no authority to manage or supervise, in other words the duties and actions of other public officials, if it is necessary to punish them, then the nation must formulate clear laws to regulate it.

What Taiwanese must not do is to let the judiciary and the principle of legality take the blame, leaving judges to make a painful choice between unlawfully using the vague concept of “actual influence,” which is outside what is written in the law, on the one hand, and being labeled as “dinosaurs” on the other.

Hsu Tze-tien is an associate professor of law at National Cheng Kung University.

Translated by Julian Clegg

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