Thu, Nov 01, 2018 - Page 8 News List

Resigning does not rule out liability

By Wu Ching-chin 吳景欽

In the immediate aftermath of the derailment of a Puyuma Express train, prosecutors focused the investigation on the driver, while senior Taiwan Railways Administration (TRA) officials put out the story that the driver’s speeding had led to the accident.

The facts, when they were revealed, showed that this was not the case, and the TRA director-general stepped down.

One thing worth reflecting on, however, is whether the senior TRA officials, the director-general among them, are criminally liable.

According to the second paragraph of Article 276 of the Criminal Code, a person who, in the performance of their occupational duties or activities, commits an offense by neglecting the degree of care required by such an occupation shall be sentenced to imprisonment for not more than five years.

The high number of fatalities in the derailment notwithstanding, Article 55 of the Criminal Code stipulates that, where an act constitutes several offenses, only the most severe punishment shall be imposed.

Moreover, according to the first paragraph of Article 14, conduct is committed negligently if the actor fails, although not intentionally, to exercise the duty of care that they should and could have exercised under the circumstances.

Criminal negligence is constituted on the premise that the actor has the duty of care.

As it is impossible for lawmakers to list all the duties of care for all occupations, a court decision relies on the judges’ interpretation of the law for each specific case, which can lead to uncertainty.

Finally, according to the Criminal Code, offenders are only punished when the act is accomplished, not attempted.

As the director-general has the authority over the overall planning of transportation, the maintenance of the railway and transport systems, and the education and training of personnel, he is certainly obliged to supervise transportation safety.

However, in the case of a specific accident, counting specific operational issues — such as train driving safety, vehicle maintenance and normal operation of the signals — among the director-general’s overall responsibilities and duties of care would require a generous interpretation of the law, possibly running afoul of the principle of nulla poena sine lege (no penalty without a law).

Perhaps specific operational issues could be counted among the director-general’s duty of care and maybe an investigation would prove that malfunctioning signals, mechanical failures or problems such as train defects or aging rails did play a part in the derailment — demonstrating that the senior officials failed to provide a proper level of supervision, thus constituting negligence — but if the problems and defects were not bad enough to cause the train to lose control, then the driver should take responsibility for the casualties — even if the officials gave instructions to continue operating a faulty train. However, this is assuming that the driver was not ordered to speed in the interest of punctuality.

The causal relationship between the derailment and other individuals, and the senior officials in particular, is therefore interrupted. The case becomes one of attempted negligence, which is not punishable under the Criminal Code.

Even if senior TRA officials cannot receive criminal punishment — based on criminal law principles such as nulla poena sine lege and in dubio pro reo (when in doubt, rule for the accused) — they still have civil liability and could even receive an administrative punishment.

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