Retired major general Han Yu-ping (韓豫平), who served as chief of staff of the army’s Hualien and Taitung Defense Command, six years ago was accused of misappropriating NT$2,880 from a bonus payment fund for troops taking part in the Han Kuang exercises to pay for a meal.
The Hualien branch of the Taiwan High Court on July 31, 2020, sentenced Han to four years and six months in prison for corruption, and the Supreme Court rejected his appeal on Feb. 14.
This “embezzlement of public funds” involves a tiny sum. Setting aside whether Han intended to commit a crime, law enforcement officials should consider whether it was necessary to file corruption charges over such an insignificant amount.
This raises the question of whether minor offenses should be decriminalized. If social values lead most people to think there is no need to ascribe guilt for some minor offenses, it could save judicial resources while meeting the general public’s expectations regarding the law.
According to the basic principles of criminal law, for something to constitute a crime, the objective behavior must meet the elements specified in the law, and it must involve illegality, as well as intent or negligence.
Negligent behavior is, in principle, not punishable, unless the law specifically states that it is.
Traditional theory holds that the difference between a minor and a major offense is a matter of the severity of the sentence that applies to them, not whether they constitute a crime. Thus, a minor offense is still a crime.
However, this approach is being revised in some countries.
Japanese jurists have proposed the concept of “substantive illegality,” according to which, although an objective act constitutes a crime under the law, if the circumstances of the act are minor, and refraining from punishing the offender would not be contrary to ordinary people’s social values, the act is not considered a crime.
Japanese judicial practice adopts this view.
There are similar sentiments in the Taiwanese legal system.
Judgement No. 4225 of 1985 of the Supreme Court states: “Although the act meets the regulations as regards the elements of a crime, if there is no substantial illegality, it can hardly constitute a crime.”
This judgement was made in a case of criminal conversion, ie, misappropriation, where because the thing misappropriated was of very little value, the court deemed that it did not constitute a crime.
The reasoning for this judgement is as follows: “The accused’s infringement of legal interests and his act were so minor that, in accordance with general social ethics, one could hardly think that it was necessary to impose a criminal penalty. Furthermore, if no prosecution and penalty are imposed with regard to this act, it would not run contrary to the legal order of social communal life. Consequently, it should be regarded as not having any substantial illegality, and therefore need not be restrained or punished by means of the law.”
The situation is similar on the other side of the Taiwan Strait.
Article 13 of the Criminal Law of the People’s Republic of China states that “if the circumstances are obviously minor and the harm done is not serious, the act shall not be considered a crime.”
These examples show that it is established practice in criminal law that minor offenses do not constitute crimes.
Taiwan’s system of trial and prosecution are such that it would indeed be possible to decriminalize minor offenses. The next step should be to legislate specific regulations to this effect. This would clear up an imperfection in Taiwan’s legal system.
Hsu Wun-pin is a lawyer and honorary chairman of the Taipei-based Chinese Association for Human Rights.
Translated by Julian Clegg
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