Newsletter
HIGHLIGHTS OF JUNE 2014 AMENDNENTS TO CRIMINAL LAWS (II)
In June 2014, the following criminal laws were amended and promulgated by the President: The Criminal Speedy Trial Act, the Code of Criminal Procedure, the Witness Protection Act and the Criminal Code of the Republic of China. Following the previous installment, in which we reported the amendments to the first three laws, we continue with the amendments to the Criminal Code of the Republic of China:
1. Criminal Code of the Republic of China
Twelve articles were amended (Articles 251, 285, 339, 339-1, 339-2, 339-3, 341-344, 347, and 349), and two articles were added (Articles 339-4 and 344-1). All the amended articles featured harsher sentences, except Article 347, in which the death penalty was removed for abduction in which the victim's life is not deprived by the crime. This revision to Article 347 is in deference to proportionality and the Enforcement Act of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights (the "Enforcement Act").
(1) The amendment reasoning cites the Sixth General Commentsof the 16th Session of the UN Human Rights Committee in 1982:"[T]he expression 'most serious crimes' in Article 6 (2) of the International Covenant on Civil and Political Rights must be read restrictively." Article 6(2) states:
In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. [Emphasis added.]
The amendment is also partly patterned after Economic and Social Council Resolution 1984/50, annex, which states that capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences. As for what constitutes "the most serious crimes," both the quinquennial reports on "safeguards guaranteeing protection of the rights of those facing the death penalty" of the Secretary General of the Economic and Social Council and the Report of the Special Rapporteur of the UN Human Rights Council in 2007 indicate that abduction not resulting in death is not an instance of "the most serious crime" which should be subject to capital punishment.
The second main reason for the amendment to Paragraphs One and Two of Article 347 is the potential for violating proportionality. The death sentence is indiscriminately imposed under theoriginal Paragraph One, simple abduction to demand ransom; the latter part of the original Paragraph Two, aggravated assault resulting in serious injuries; and the former part of the original Paragraph Two,where deaths are caused. The amendment was carried out to comply with ArticlesTwo and Three of the Enforcement Act. Under Article Two, the human rights protection rules in the International Covenant on Civil and Political Rights ("ICCPR") and International Covenant on Economic, Social and Cultural Rights ("ICESCR") have the force of domestic laws, while under Article Three, the application of the ICCPR and ICESCR is subject to the interpretation of the Human Rights Committee and the legislative reasoning.
(2) The finein Paragraph One of Article 342 (Breach of Trust) was raised from the outdated 1,000 yuan (equivalent to NT$ 30,000 according to Article 1-1 of the Enforcement Act of the Criminal Code) to NT$ 500,000.
(3) The offense of “usuriousinterest” in Article 344 was further defined.According to the original definition, usury is committed when a loan of money or other items is provided at a usurious interest rate to a victim who was distressed, imprudent, or inexperienced. The new definition requires that the victim also be in a situation where it is difficult to ask for help.
A new offense is added as Article 344-1, which is forcible collection of debts, targeting “a person who acquires usurious interest under the first paragraph of the preceding article by force, threat, intimidation, breaking and entering into a residence, inflicting harm or damage, stalking, or other methods that instill fear."Under the new provision, such an offender can be sentenced to imprisonment for no less than six months and no more than five years; in addition, a fine of no more than NT$ 500,000 may be imposed.An attempt to commit such an offense is also punishable.
(4) Theoutdated 1,000 yuan fine (equivalent to NTD 30,000 by Article 1-1 of the Enforcement Act of the Criminal Code) for the offense offraud in Article 339 was raised to NT$ 500,000.
Addition of Article 339-4 (Serious Fraud):
The sentence in Article 339 for fraud is not severe enough to punish organizations and groups that commit fraud. In amending the provision, the legislation of Germany, Italy, Austria, Norway, the Netherlands, Sweden, and Denmark was consulted. Serious fraud is fraud committed (1) using the names of government agencies or public officials, which violates the public's trust in public powers; (2) by a group of people where the victims are more easily deceived,the willful intention is greater than that of a single person’s fraudulent act;and (3) where mass mailings are sent to the public via means of telecommunications or the Internet. The penalty of incarceration is increased fromone to seven years, and a fine of no more thanNTD 1 million and the penalty for an attempt of Serious Fraudare added.
The Amendments to the Criminal Code were announced by the President on 18 June 2014 in Presidential Order Hua-Tsung-Yi-Yi-Tzu No. 10300093721, and entered into force on the same day.