THE EFFECT OF FELONY POLICY ON CORRUPTION: EVIDENCE FROM THE OFFENSE OF EMBEZZLEMENT

• Main Authors: Chi,Chih-Kuang, 紀致光
• Other Authors: Jou,Susyan
• Format: Others
• Language: zh-TW
• Published: 2006
• Online Access: http://ndltd.ncl.edu.tw/handle/24999008950100402395

碩士 === 國立臺北大學 === 犯罪學研究所 === 94 === The Anti-Corruption Statute (1963) is a special law enacted by our government to combat corruption. The purpose is to “cleanse out political corruption” through “severe punishment for corruption.” In spite of this legislation, levels of corruption in Taiwan’s civil service still do not compare favourably with other states in East Asia. In addition, there are problems associated with the legislation in terms of criminal proceedings, incommensurate responsibilities for offenses, and rehabilitation. Although the competent authority, the Ministry of Justice, is of the opinion that to lower statutory punishment would help prevent corruption, there has been no policy development in this area. As a result, felony policy is still the key measure to combat corruption. According to Interpretations No. 476 and 551 of the Council of Justices of the Constitutional Court, special criminal laws place special restrictions on people’s basic rights, and the content of which shall conform to the “principle of appropriateness between offense and penalty” and “the principle of proportionality,” otherwise the criminal laws are unconstitutional. This thesis examines whether or not the adjudication of cases in offenses against the Anti-corruption Statute (one of the special criminal laws) conform to the above-mentioned two principles. Prosecuted cases of embezzlement in the period 1999 and 2000 were taken as samples to examine the impact of the Anti-corruption Statute on trial length, conviction rate, and sentencing. Results show that: 1. The felony policy may have infringed the principle of appropriateness between offense and penalty. Courts generally cite the commutation regulations in Article 59 of Criminal Code based on “the state of offense is commiserative and forgivable” without concrete statements of the whys and wherefores, which makes the pronounced term of imprisonment substantially lower than the minimum term stipulated in applicable laws, while too many special commutation regulations bring about unfairness in adjudications. 2. The felony policy may have infringed the principle of proportionality. The Anti-corruption Statute influences the application of litigation proceedings (whether or not appeal to the Supreme Court) and defendants’ attitudes during litigations (whether or not selection of defense counsels on their own, whether or not subjugated to the conviction), which elongates the litigation period and lowers conviction rates, while the increase in prison term is limited. Generally speaking, litigation outcomes do not appear to influence the “cleansing out political corruption.” 3. The Criminal Code will be enough to regulate the offense of embezzlement by public servants. Based on analysis of sentencing, the existing constituents and penalty regulations of the Criminal Code will already be able to regulate offenses of embezzlement, and a special law is unnecessary. To combat corruption, this thesis suggests that the measures based on “severe punishment during troubled times” should be abandoned and replaced by three other aspects: first, giving higher priority to more effective anti-corruption measures, second, reviewing the provisions of the Anti-corruption Statute, and finally, ensuring appropriate allocation of judicial resources, so that anti-corruption work can be made more effective.