When a powerful earthquake struck Hualien on Feb. 6, the most seriously damaged building was the Yun Men Tsui Ti (雲門翠堤) building. People naturally had questions about its structural integrity. However, the existing legal framework makes it extremely difficult to determine legal — and especially criminal — accountability in such disasters.
Article 193 of the Criminal Code says: “A contractor or an overseer who endangers public safety by violating an established rule of construction in erecting or demolishing a structure shall be sentenced to imprisonment for not more than three years...”
Because this offense is one of substantive endangerment, it is punishable whether or not the result of a building’s collapse is related to the building’s construction. Here, it would appear that this could be the basis for ascribing liability.
However, the maximum penalty prescribed is three years, and under the old version of the Criminal Code — prior to July 1, 2006 — the statute of limitations for an offense punishable by three years’ or less imprisonment was 10 years. Therefore, if prosecutors want to pursue the matter according to this offense, it might be that no indictment can be made. In which case, those responsible can only be held criminally accountable for the offense of negligent homicide.
A prerequisite for constituting an offense of negligence would be a breach of the duty of care. However, the “established rules of construction” can only be determined through reference to complex construction laws, regulations, and methods and techniques — rules that could have changed over time.
The question of whether the duty of care has been breached cannot be judged based on current laws, but only on the standards at the time of construction. Notably, legal requirements for earthquake resistance have become stricter since the 921 Earthquake of 1999.
However, if the current standards were used in determining whether the duty of care was breached in the construction of buildings built before the 921 Earthquake, any resulting punishment would be one based on retroactive law, which would violate the principle that no penalty should be imposed for an act that is done when there is no law forbidding it.
Even if it is found that there were violations of the established rules of construction, the case would still become caught up in proving cause and effect. Although the prosecution could point out that adjacent buildings had not collapsed as evidence, the builder could equally blame factors such as soil liquefaction and unauthorized alterations made to the building’s primary structure by its occupiers.
Furthermore, a building cannot be built by one person, and this leads to the question of how wide to cast the net.
Even if human failings are found to have occurred, the case will end with a verdict of not guilty, because the accused must be found innocent unless their guilt is proven beyond a reasonable doubt and because in Taiwan professional negligence is not punishable if it does not actually result in death.
The very fact that there are limits to criminal liability in natural disasters highlights the importance of civil claims for damages by the people concerned.
However, given the existence of “one-case construction companies,” which are commonplace in Taiwan, such claims are likely to get mired in drawn-out litigation. Therefore, either the national or local government should assume responsibility for providing legal aid — and even for paying damages or compensation — to protect disaster victims from suffering the secondary injury of being left isolated and helpless.
Wu Ching-chin is an associate professor in Aletheia University’s Department of Law.
Translated by Julian Clegg
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