Mon, Sep 15, 2014 - Page 8 News List

Legislative amendment needed on illicit gains

By Chen In-chin 陳英鈐

The government’s failure to stem a series of food safety breaches is causing widespread anxiety.

One solution would be to strengthen the legal system so that after compensating victims, the unlawful gains made by anyone who makes, imports or sells tainted food products would be pursued in full and paid into a food safety protection fund. This could be achieved by amending Article 44, Paragraph 2 of the Act Governing Food Safety and Sanitation.

US laws generally include regulations about pursuing unlawful gains, thus preventing lawbreakers from profiting from their crimes. In legal practice, this pursuit is not regarded as a punishment, so it can coexist with penalties imposed under criminal and civil law without violating the Fifth Amendment’s ban on double jeopardy.

The case of the US Securities and Exchange Commission (SEC) v Contorinis last year is a good example. Fund manager Joseph Contorinis made illegal use of insider information to make a large amount of money for a particular fund. Contorinis was tried and sentenced to six years in prison, and the court confiscated more than US$420,000 that he had made from his criminal activities. In addition, the SEC asked the court to impose a civil-law penalty on Contorinis and pursue the US$7.26 million that he had made illegally for the fund that he managed.

In the tainted cooking oil case involving the Chang Chi Foodstuff Factory Co, Changhua County Government fined the company NT$1.85 billion (US$61.5 million) based on the aforementioned Article 44, Paragraph 2 of the food safety act.

However, the Ministry of Health and Welfare’s Petition and Appeals Committee revoked this fine on the grounds that the Changhua District Court had already imposed a fine of NT$5 million on the company and that a further fine would constitute double punishment for the same offense.

It is true that the imposition of both criminal and administrative fines for the same offense would constitute double jeopardy.

The problem lies in the rather unclear wording of Article 44, Paragraph 2 of the food safety act, which reads: “Those … whose benefit exceeds the … statutory fine … may be sanctioned within the scope of the benefit gained.”

This led the committee to view the “sanction” as a fine and invoke the principle of not imposing two punishments for a single offense.

However, on closer inspection, this regulation is similar to Article 18, Paragraph 2 and Article 20 of the Administrative Penalty Act. These provisions are all influenced by US law, and the sanctions involved are not penalties for illegal acts, but rather seek to pursue the ill-gotten gains obtained by perpetrators. Consequently, the question of double jeopardy does not arise when such sanctions are imposed in addition to a criminal-law fine.

The Chang Chi case shows that when the perpetrator and a company are separate legal entities, it is possible for a heavy fine to be imposed on the perpetrator, who might not be the main beneficiary of the crime, while the company escapes with a relatively small fine and still retains its immense illicit profits.

It would be hard for petition and appeals committees or law courts to find a way out of this predicament. Instead, the legislature must amend the law.

Unscrupulous businesses are concerned purely with profit. Only when they stand a risk of losing more than they can make are they likely to cease producing tainted goods.

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