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By Chao Hsuey-wen 趙萃文
The Criminal Investigation Bureau recently released data showing that from July 27 to Nov. 16, it probed 35 cases of employment abductions, home invasions and human trafficking in cities and counties across Taiwan, with 150 victims rescued.
The local elections took the spotlight away from these cases and robbed them of the attention they deserved. Undoubtedly, this is a blow to the government and its international image.
The criminals involved in employment scams and international organ harvesting are despicable, but it is possible that some of the victims might have intended to gain from the fraudsters — without expecting that they would become prey.
It seems necessary to amend the law to prevent get-rich-quick schemes, and generally prevent deeper abuses.
The Legislative Yuan amended the Criminal Code in 2014 by adding Article 339-4 to increase penalties for fraud, which were previously governed by Article 5 of the code, covering crimes committed outside the country.
In 2017, the Organized Crime Prevention Act (組織犯罪防制條例) was extensively amended to redefine a criminal organization as “a structured, permanent or profit-seeking organization” involved in certain offenses.
At that time, apart from penalties, offenders had to perform “compulsory labor” for three years prior to sentencing.
Statistics show that the amendments effectively lowered such crimes.
To protect human rights, the then-Council of Grand Justices in 2019 issued Constitutional Interpretation No. 775 to declare that Article 47 of the Criminal Code was unconstitutional for stating “the principal punishment for a recidivist shall be increased up to one half.”
In several landmark rulings, the Supreme Court has said that the definition of “recidivist” does not conform with progress made in modern criminal law reform and should be abolished.
Moreover, the Constitutional Court on Dec. 10 issued Constitutional Interpretation No. 812, declaring that the compulsory labor penalties in the Criminal Code and various “special criminal laws” are unconstitutional, and have lost efficacy since the date of the interpretation.
It remains to be seen whether the interpretations might increase fraudulent behavior, and whether there is a cause-and-effect relationship.
Taiwan’s Criminal Code over time has been adopting the characteristics of Japanese and German criminal laws. Although Japan’s code does not include compulsory labor, the punishment for a recidivist can be increased by twice the maximum term of imprisonment for the crime, which is heavier than the punishment for a recidivist in Taiwan.
The German Criminal Code abolished recidivist punishment in 1986, although Section 66 of the code states: “The court orders preventive detention in addition to a sentence of imprisonment where … the offender has twice been sentenced to imprisonment for a term of at least one year in each case.”
This allows the court to remove dangerous repeat offenders from society — organized crime members and sex offenders, for instance — while correcting them simultaneously through “preventive detention” to maintain social order. There is no time limit for such detention.
With recidivist punishment and preventive detention, Japan and Germany have effectively curbed fraudulent activity.
Meanwhile, Taiwan’s Criminal Code is stuck between the Japanese and German models.
Chao Hsuey-wen is a university assistant professor.
Translated by Eddy Chang
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