The Shilin District Court last week found event organizer Lu Chung-chi (呂忠吉) guilty of professional negligence and sentenced him to four years and 10 months in jail for his role in the Formosa Fun Coast (八仙樂園) water park disaster.
The families of people killed or injured in the disaster were left wondering how someone guilty of causing so much harm could be given such a lenient sentence. This was not the fault of the judiciary: It is due to structural issues with the Criminal Code.
The law allows for a sentence of no more than five years for professional negligence: more specifically, for a person who, in the performance of their duties or activities, negligently causes the death of another.
A prison term of five years is, indeed, quite lenient. However, it could have been even lighter. In cases such as these, the victim may also seek compensation in a civil case. If the two sides settle, the courts will accept a sentence of less than two years. The possibility of a suspended sentence also increases accordingly.
However, the water park disaster caused many fatalities. In the Criminal Code, punishments are cumulative. Therefore, for multiple crimes, the accumulated sentence can actually be quite heavy.
Article 51, Clause 5, of the code states: “When several sentences of imprisonment have been pronounced, the period of punishment shall be fixed at not less than the longest period of these punishments and not more than the sum of the periods of these punishments, but shall not exceed 30 years.” The court, then, did have the legal basis on which to hand down a more lengthy sentence.
That said, this is qualified by Article 55 of the code, which deals with what is termed, in legalese, “coincidence.”
The article states: “Where an act constitutes several offenses, only the most severe punishment shall be imposed. The punishment so imposed shall be not less than the minimum principal punishment for the least severe offense.”
Applied to the water park case, since the offense involved a single incident, it can only be deemed one count of professional negligence and, despite the number of fatalities and injuries, it is nevertheless technically a single crime.
Put like that, the four years and 10 months sentence, which approaches the legally specified ceiling of five years, cannot really be called lenient.
This ruling has prompted some to call for a new offense — serious negligence leading to fatalities — to be added to the Criminal Code, so the legal ceiling of the crime can be increased to more than five years.
However, this would necessitate a complete overhaul of the code. That is unlikely to happen. In addition, making the possible sentence tougher will do nothing to improve the victims’ chances of receiving compensation.
The victims decided to take the civil action portion of the case to a civil court. This was based on considerations of convenience and speed, but meant that they did forgo the fee waiver, the principle of common evidence and the prompt payment of compensation. Also, had they sought compensation of NT$10 billion (US$310.5 million) they would have been met with prohibitive court fees.
There was one ray of light possibly heralding a new era for justice in this country. The non-prosecutorial disposition for the other defendants was questioned by the victims and their families, who submitted a request for reconsideration to the Taiwan High Prosecutors’ Office, which then annulled the Shilin district prosecutors’ disposition.
The problem is that should the Shilin District Prosecutors’ Office feel that there is no basis to change its original assessment and submit yet another non-prosecutorial disposition, the case could find itself locked in a never-ending loop.
Should the victims feel that there is no basis for their reconsideration request, they do have the right to go directly to the courts, rather than via the prosecutors, but this could lead to a situation in which nothing gets resolved.
The current procedure for requesting reconsiderations needs to be changed. Complainants ought to be given the freedom to choose whether to appeal to the courts directly. Otherwise, our right to instigating legal proceedings, given us by Article 16 of the Republic of China Constitution, is essentially decided by the prosecutorial authorities, and this goes against the human rights values upon which this country is founded.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Paul Cooper
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