As the owners of intellectual property are well aware, convictions for lesser crimes in Taiwan rarely result in the offender actually serving jail time. If a court sentences an offender to a custodial sentence of up to six months for an offense that carries a maximum of five years, the sentence can be commuted to to a fine (yike fajin ) at a daily rate of NT$1,000 (c. US$33) to $3,000 (c. US$100). Criminal Code § 41.
IP conviction commuted to fine
For example, criminal trademark infringement carries a maximum sentence of three years. Trademark Act § 95. Consequently, sentences for criminal trademark infringement are almost always commuted fines. This is illustrated by a 2011 case in which the Shilin District Court sentenced an offender surnamed Liu to a custodial sentence of 40 days for selling counterfeit computer accessories bearing the Hello Kitty and Audio-Technica marks. The sentence was suspended for two years and commutable to a fine of NT$1,000 per day. Shilin District Court, ShenZhijian 18 (2011).
Commutation is discretionary
While most such sentences are in fact commuted, commutation is not automatic but at the discretion of the prosecutor. Taiwan’s Code of Criminal Procedure provides that the sentences are carried out by the prosecutor at the court that handed down the sentence. § 457. This is construed to mean that the power to commute a sentence is at the discretion of the prosecutor.
Keelung City policy against commutation
The Keelung District Prosecutor’s Office has issued a new policy against drunk driving that illustrates this discretion well. Since June of this year, Keelung prosecutors have been declining to commute sentences of less than six months for drunk driving to fines where the offender has been convicted of driving under the influence twice in the past five years . The Chinese language media Liberty Times reports that 33 drivers in Keelung have not had their sentences commuted to fine as almost certainly would have been the case in other cities or counties and instead have had to serve time for drunk driving. This had led some members of Taiwan’s legal community to argue that drivers in Keelung are being singled out unfairly because this is a purely local policy with no basis in the national policies of the Ministry of Justice (which administers the procurate) or the law. According to this view, the policy of not commuting sentences for these repeat offenders would justified only if the procurate adopts a uniform national policy against commutation of sentences for repeated drunk driving offenses.
Nonetheless, prosecutorial discretion in carrying out sentences is subject to judicial review. The Code of Criminal Procedure provides that a person who has received a sentence may petition the court to review the prosecutor’s carrying out of the sentence for abuse of discretion (budang). § 484. Three offenders have petitioned the Keelung District Court since June for reviews of decisions by the Keelung District Prosecutor’s Office not to commute sentences for drunk driving into fines. One of the petitioners had his petition granted by the court on grounds that his imprisonment would cause undue hardship since he was the sole source of support for his extended family which included his 80 year old mother, young children, and his disabled younger brother. He also promised to reform and not to offend again.
On Monday (Sept. 24), the Chinese-language China Times, ran a series of articles (now behind the China Times paywall) on Taiwanese companies in China focusing on a new wave of Taiwanese investments in second and third tier cities in the north and west. While officials from Taiwan’s cabinet-level Mainland Affairs Commission estimate the total amount of Taiwanese investment at US$150 billion, the China Times gives some interesting statistics on investments by companies listed on Taiwanese exchanges.
- Listed Taiwanese companies with investments in China: 2/3
- Estimated number of Taiwanese SMEs with China investments: 10,000
- China investments by listed Taiwanese companies through Q1: c. US$20 billion
- Listed firm with largest China investments: Nanya Plastics (c. US$822 million)
- Current export dependence on China: 21.58%
- Growth of export dependence on China 1995-2005: 400%
- Stated 2005 profits in China by listed Taiwanese companies: US$2.6 billion
- Stated 2006 profits in China by listed Taiwanese companies: US$1.77 billion
- Profits from Chinese investments remitted back to Taiwan through Q1 2007: US$828.5 million
- Taiwanese companies listed in Hong Kong: 50 (expected to be 60 by end of 2007)
- Taiwanese who reside in China for more than 180 days: 750,000
Another noteworthy figure is the number of Taiwanese residing in China for more than 180 days per year, which the paper puts at 750,000 including dependents. This is a significant number to be sure, but is less than the figure of one million or more frequently reported in the English-language media.
Although Taiwanese businesses operating in China face many of the same challenges as other foreign businesses do and must never be assumed to enjoy the same home court advantages that Chinese firms may have, they can be valuable partners because they speak the language, share a common cultural background, and have experience both in China and often internationally.
It is also worth noting that projects with Taiwanese businesses can be secured with the considerable assets that many have back in Taiwan and where they are subject to a mature legal system and independent courts.
The first two databases listed are public and bilingual. Both have English pages with links to translations of many of Taiwan’s statutes, regulations, and judgments. The third, Lawbank, is a commercial service but deserves special mention because it also includes a searchable collection of administrative letters of interpretation (Chinese only) and English translations of varying quality unavailable elsewhere.
Some other web pages providing translations of Taiwanese laws in specific areas are listed below. It should be noted the home pages of most Taiwan’s government agencies provide English translations of selected key laws and regulations in the agency’s jurisdiction. The new National Immigration Agency and the Council of Labor Affairs are important examples.
- Capital markets law
- Intellectual property law
- Competition law
- Environmental law
- Business and industrial law
- Banking law
- Tax law
- Insurance law
The primary and centralized source for new laws, regulations, and administrative acts and decrees is the Executive Yuan Gazette Online. While the full announcements are only available in Chinese, their abstracts are expertly translated and updated every weekday.
Paul Cox leads the Winkler Partners Translation Department.