17 December, 2007
Taiwan to Draft Sentencing Guidelines
The Chinese-language Liberty Times reported today that Taiwan's Judicial Yuan is drafting sentencing guidelines for judges that would recommend quantified ranges for existing statutory criminal penalties. According to the report, guidelines for larceny, telephone fraud, and copyright violations will become effective in July for an evaluation period.
Former Minister of Justice Chen Ding-nan and the Judicial Reform Foundation expressed concerns of excessive leniency in sentencing to the Judicial Yuan some three years ago.
For example, larceny in Taiwan is subject to a maximum statutory sentence of five years. However, in practice, 86 percent of convicted offenders receive sentences of less than one year.
Another example is the serious problem of telephone fraud that has plagued Taiwan in recent years. Sophisticated criminal organizations take advantage of lax privacy laws to obtain personal information about consumers from banks, online shopping platforms, or telecoms and then use that information to convince consumers to remit funds using account-to-account ATM transfers.
The maximum statutory sentence is again five years, but in practice over half of all convicted offenders receive sentence of less than six months. Since criminal sentences of less than six months can be (and usually are) converted to a fine, all but the most indigent offenders sentenced to less than six months do not serve time in prison.
Light sentences for intellectual property crimes that are then converted to fines have also been a major complaint of international rights holders for many years. In its 2007 White Paper on intellectual property issues, for example, the American Chamber of Commerce in Taipei, for example, stated that
The judiciary has not taken advantage of the range of sentencing opportunities made available by the body of Taiwan intellectual property law. Instead, the courts continue to render enforcement of IP laws ineffective by letting off most convicted IP offenders with light, suspended sentences, and low fines that do little to discourage counterfeiting.
The same paper also noted that light sentencing and low fines have been a perennial issue for the Chamber for the last 10 years. In 2006, Judicial Yuan statistics show that 46 percent of those convicted of criminal copyright infringement were either fined or had their sentences of less than six months converted to fines.
In response to these concerns, the Judicial Yuan is drafting a set of Reference Sentencing Guidelines for judges that are inspired by the US's Federal Sentencing Guidelines. It should be noted, however, that Taiwan's Guidelines are not compulsory because they are administrative guidelines promulgated by the Judicial Yuan rather than statutory requirements enacted by the Legislature.
While some judges believe that sentencing guidelines violate judicial independence guaranteed by Article 80 of the ROC Constitution, others believe that Judicial Yuan Interpretation 530 allows the Yuan to issue binding sentencing guidelines without a statutory basis.
The inclusion of sentencing guidelines for violations of the Copyright Act is of special interest to foreign right holders because they are scheduled to come into effect in July when Taiwan's new Intellectual Property Court begins hearing cases.
In a broader perspective, the explicit references to the US sentencing laws by proponents of sentencing guidelines as well as citations of United States v. Booker suggest the growing importance of the US legal system for Taiwan in areas other than commercial law. While economic ties between the US and Taiwan have created a much-criticized hybrid by injecting concepts from the Anglo-American legal tradition into Taiwan's continental legal system modeled closely on German and Japanese law, the proposed guidelines show that legal practices from the US are beginning to seep into areas such as criminal law that have remained closer to their origins in German law.
