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Key Points in the May 10, 2019 Amendment to the Criminal Code

Jack Chih-Ke Wu/ Duke Wu/Ting-An Chen


On May 10, 2019, the Legislative Yuan passed the third reading of an amendment to some articles of the Criminal Code of the Republic of China and the addition of Article 8-2 to the Enforcement Law of the Criminal Code. Several articles have been amended. Key points of the amendment are as follows:
 
1.    Prosecution for crimes causing death shall not be time-barred (The proviso added to Subparagraph 1, Paragraph 1, Article 80)  
 
-       Out of consideration for the balance of statutory sentence and legal interest, and in consultation with pertinent laws of other countries, a proviso is added to Subparagraph 1, Paragraph 1, Article 80, stating that prosecution for crimes punishable with the maximum principal penalty of death sentence, life imprisonment, or not less than ten years’ imprisonment, and having caused death shall not be time-barred.
 
-       For the avoidance of doubt in application of laws, Article 8-2 is added to the Enforcement Law of the Criminal Code, stating, “Where the statute of limitations for prosecution for an offense has started to run but has not yet run out before the enforcement of the proviso of Subparagraph 1, Paragraph 1, Article 80 of the Criminal Code, the amended provisions instead of the preceding article (i.e., Article 8-1) shall apply to prosecution for the offense.”  
 
-       Added Provisions:
 
-       Proviso of Subparagraph 1, Paragraph 1, Article 80 of the Criminal Code (reading, “Prosecution shall be time-barred if not exercised within the following periods: (1) Thirty years for an offense that carries the maximum principal punishment of death or imprisonment for life or for not less than ten years; unless the offense has caused death.”)
 
-       Article 8-2 of the Enforcement Law of the Criminal Code (reading, “Where the statute of limitations for prosecution for an offense has started to run but has not yet run out before the enforcement of the proviso of Subparagraph 1, Paragraph 1, Article 80 of the Criminal Code, the amended provision instead of the preceding article shall apply to prosecution for the offense.”)  
 
2.    Addition of provision (i.e., Paragraph 2, Article 139) to govern the penalty on violations of seizure orders legally issued by a public official.
 
-       Before the amendment, courts usually found that a person could be deemed having committed an offense under Paragraph 1, Article 139 of the Criminal Code only when the person had damaged, removed, disfigured or rendered ineffective a seal or attachment notice affixed by a public official. However, the seals or attachment notices usually refer to those affixed to movable or immovable property subject to provisional remedies proceedings. Where the objects to be preserved are rights to claim or rights in rem, bans on collection, repayment, transfer or disposal of such objects are usually imposed through issuance of seizure orders. Consequence of violations of such seizure orders should be the same as those of violations of seals or attachment notice affixed by a public official. That is why Article 139 is added with Paragraph 2.
 
-       Added Provisions:
 
-       Paragraph 2, Article 139 of the Criminal Code (reading, “The same penalty shall apply to violators of seizure orders legally issued by a public official.”)  
 
3.    The fines are raised to make the penalties up to date. (The following underlined provisions of Article 276, Paragraph 1 of Article 277, Articles 279, 281 and 284, Paragraph 1 of Article 320, and Paragraph 1 of Article 321 are amended provisions.)
 
-       Considering that the penalties under some articles of the Criminal Code are out of date, the Legislative Yuan amends the fines imposed for negligently causing death under Article 276, causing injury to another under Paragraph 1 of Article 277, causing injury for righteous indignation under Articles 279, assaulting or battering one’s lineal ascendants by blood under Article 281, negligently causing injury to another under Article 284, committing larceny under Paragraph 1 of Article 320, and aggravated larceny under Paragraph 1 of Article 321.
 
-        Amended Provisions:
 
-        Article 276 (reading, “A person who negligently causes the death of another shall be punished with imprisonment for not more than five years, detention, or a fine of not more than NT$500,000.”)
 
-        Paragraph 1 of Article 277(reading, “A person who causes injury to another shall be punished with imprisonment for not more than five years, detention, or a fine of not more than NT$500,000.”)
 
-        Articles 279 (reading, “A person who commits an offense specified in one of the two preceding articles for righteous indignation shall be punished with imprisonment for not more than two years, detention, or a fine of not more than NT$200,000; if the offense causes death, the offender shall be sentenced to imprisonment for not more than five years.”)
 
-        Article 281 (reading, “A person who assaults or batters his/her lineal ascendant by blood without causing an injury shall be punished with imprisonment for not more than one year, detention, or a fine of not more than NT$100,000.”)
 
-        Article 284 (reading, “A person who negligently causes injury to another shall be punished with imprisonment for not more than one year, detention, or a fine of not more than NT$100,000; if any serious physical injury is caused, the person shall be sentenced to imprisonment for not more than three years, detention, or a fine of not more than NT$300,000.”)
 
-        Paragraph 1 of Article 320 (reading, “A person who commits larceny for unlawfully taking movable property of another with the intent to exercise unlawful control over such property for himself/herself or a third person shall be punished with imprisonment for not more than five years, detention, or a fine of not more than NT$500,000.
 
-        Paragraph 1 of Article 321 (reading, “A person who commits an offense under Paragraph 1 or 2 of Article 320 under one of the following circumstances shall be punished with imprisonment for not less than six months but not more than five years, and a fine of not more than NT$500,000 may be imposed.”)
 
4.    Following the principle of equality, the legislators removed the provisions for punishmentfor occupational negligence. (As a result, Paragraph 3 of Article 183, Paragraph 4 of Article 184, Paragraph 4 of Article 189, Paragraph 2 of Article 276, and Paragraph 2 of Article 284 were deleted).
 
-       The offense of negligently causing death and the offense of negligently causing injury under the Criminal Code, and the offenses against public safety under Article 183, 184 or 189 were enacted because the legislators opined that when persons committed such offense in performance of occupational duties, the risks and the frequency of risks caused thereby would be higher than those caused by ordinary people’s negligence, and that as those persons were expected to be more capable of identifying risks and preventing the occurrence of certain risks than ordinary people, they should be held more responsible for their offense.   
 
-       However, most academics opine that the damage to legal interest negligently caused by a person in performance of his/her occupational duties is not necessarily severer than that caused by an ordinary person, and it is unconvincing to expect a person performing occupational duties to be more capable of preventing occurrence of risks. Hence, following the principle of equality of punishment, the legislators deleted the provisions for punishmentfor occupational negligence from Paragraph 3 of Article 183, Paragraph 4 of Article 184, Paragraph 4 of Article 189, Paragraph 2 of Article 276, and Paragraph 2 of Article 284, raised the liability for the offense of ordinary negligence set forth in those provisions, and granted judges the discretion to impose appropriate punishments on a case-by-case basis after considering the circumstances under which an offender breaches his/her duty of care.


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