Actor Darren Wang (王大陸) allegedly paid NT$3.6 million (US$121,535) to a fraud ring, run by a man named Chen Chih-ming (陳志明), to falsify documents and help him evade military service.
New Taipei City prosecutors on Monday indicted 24 “draft dodgers” and four intermediaries involved in the ring’s operations, and requested that Chen be handed a heavier sentence — at least five years in prison.
Articles 3 and 4 of the Punishment Act for Violation to Military Service System (妨害兵役治罪條例) stipulate that men of military service age who try to avoid recruitment would face a maximum five years in prison. However, judges typically only hand sentences of about three to four months, and those are usually convertible to fines.
As for reservists who fail to report for service after being recalled, the maximum penalty is three years in prison — yet, again, judges typically only sentence them to two to three months in prison, which are also convertible into fines.
Men of military service age who remain abroad past the age of 36 are permanently exempt from military service, whereas reservists who fail to report for recall can be sentenced repeatedly and could even be considered recidivists under Article 47 of the Criminal Code should they fail to report more than once within five years. There is a clear judicial imbalance.
The Criminal Code and the Criminal Code of the Armed Forces (陸海空軍刑法) are primarily modeled after Germany. The legal systems of Taiwan and Germany share a common basis in maintaining military discipline. The German Criminal Code, regarded as a kind of Magna Carta when it comes to the protection of criminal offenders, repeatedly emphasizes the use of non-institutional punishments to give offenders as many opportunities as possible for probations or fines.
However, German military law is particularly unique. Article 10 of the German military penal code states that the court cannot impose a fine on a soldier if there are special circumstances to their crime that necessitate a prison sentence to maintain military discipline. Article 14 further states that if an offender is granted a sentence of more than six months, the court must not grant probation if maintaining discipline requires it. Such revisions illustrate profound legislative intent.
German legislators are aware of the legislative purpose of military criminal law and the unique characteristics of the armed forces. They believe that crimes which undermine military discipline should not be granted the option of probation or commutation into fines, to avoid impacting overall military discipline, combat readiness or national security. Such an approach helps cultivate lawfulness and respect for discipline among German conscripts. It is clear that German legislators and legal academics are much more knowledgeable in this regard and Taiwan should learn from their example.
Although articles 3 and 4 of the Punishment Act for Violation to Military Service System do outline punishments for those who refuse or evade military service, the maximum sentence should be raised to 10 years in prison, and the minimum sentence should be increased to at least seven months in prison. This would prevent the common practice of employing Article 41 of the Criminal Code, which stipulates that offenders sentenced to imprisonment for not more than six months for an offense that carries a maximum punishment of not more than five years, may have their punishments commuted to a fine.
It is crucial that judges determine sentences based on the unique circumstances of each case.
Chao Hsuey-wen is an assistant professor and holds a doctorate in law from Fu Jen Catholic University.
Translated by Kyra Gustavsen
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