A soldier who went missing from Kinmen County on Thursday last week has been confirmed to be in China. It has not been determined why the soldier swam there, but the situation does raise the question of criminal liability.
A serving member of the military who surrenders to an enemy is punishable under Article 24 of the Criminal Code of the Armed Forces (陸海空軍刑法) and liable to imprisonment of no less than 10 years, life imprisonment or the death penalty, depending on the severity of the crime.
The applicability of this law to defections to the Chinese communists has caused controversy over whether China should be considered an enemy state. This is because Article 11 of the Additional Articles of the Republic of China Constitution (中華民國憲法增修條文) treats China as part of the “mainland area,” not a foreign country.
This presents complications for the application of the crime of treason, which involves safeguarding the state’s existence. When the Criminal Code was amended in 2019, the loophole was meant to be closed by the addition of Article 115-1, extending liability for treason to “offenses committed in Mainland China, Hong Kong, Macau, or any hostile foreign forces, or to the agents thereof.”
This amendment only settled the question of whether China is to be considered a foreign country; the matter of whether it could be considered an enemy in the eyes of the law remains unresolved. The definition of an enemy state depends on how authorities interpret the situation.
Although the Chinese People’s Liberation Army has been sending jets close to Taiwan’s airspace, there is no explicit provision in laws or official documents that considers the other side of the Taiwan Strait as an enemy state or enemy force, and this makes the application of the crime of defection to China problematic.
Consequently, if a soldier swims to the other side, they can only be punished for attempting to dodge military service.
Article 39 of the Criminal Code of the Armed Forces says a person who tries to avoid military service over a long period for the purpose of evasion could be imprisoned for up to five years, but a person who tries to escape service could have the penalty reduced if they return within six days.
The offense, then, must be committed with the intent of evading military service for a long period. If done because of emotional stress or other pressures, it would not be considered as having been committed with the intention to evade service, and would fall under Article 40 of the Criminal Code of the Armed Forces and be punishable by up to three years in prison.
This is why the notice of evasion was not issued until Wednesday, six days after the person went missing.
Further complications arise if China is unwilling to repatriate the soldier. The crime has been established, but the act is ongoing, and according to Article 80 of the Criminal Code, the statute of limitations commences from the day the offense is committed. If the offense is of a continuing nature, the period commences from the last day on which the offense is completed.
As long as the person has not returned to Taiwan to face arrest, the act is continuing and the statute of limitations does not start to run.
There is precedent in the case of Justin Lin (林毅夫), who defected to China by swimming from Kinmen to Xiamen in 1979.
Wu Ching-chin is a professor of law at Aletheia University and director of its Research Center for Criminal Law.
Translated by Paul Cooper
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