2017.7.28
Emily Chueh
The Supreme Court rendered the 106-Tai-Shang-197 Civil Decision of July 28, 2017 (hereinafter, the “Decision”), holding that in addition to a civil servant’s clear awareness of pursuing any illicit gain for a civil servant himself/herself or for others, an offense of illicit enrichment committed by a civil servant also requires that the recipient of the civil servant’s enrichment is profited as a result.
According to the facts underlying this Decision, the original decision concluded that the Defendant continuously leaked non-national defense secrets and constituted an offense of enrichment based on the affairs he was in charge of. However, the Defendant filed this appeal out of dissatisfaction.
According to the Decision, for the offense of enrichment committed by a civil servant under the Anti-corruption Statute to be established, in addition to a civil servant’s clear awareness of pursuing any illicit gain for himself/herself or for others, this still requires that the recipient of the civil servant’s enrichment is profited. According to legislative explanations, the so-called “gain” refers to any physical assets and any other property interest that add economic value to the assets of the recipient of the enrichment, be they tangible, intangible, passive or active. As for the recovery cost, tax and expense potions of the recipient of a civil servant’s enrichment, since they are expenditures to begin with and are not illicit gains obtained without compensation, they shall certainly be deducted since they do not fall within the scope of enrichment.
It was further pointed out in the Decision that although the Defendant’s leakage of secrets enriched another person, still the amount of profit was calculated by the cumulative amount of profit or loss of each stock without deducting tax and expense costs such as commissions, transaction taxes and short sale handling fees. This was erroneous in the sense that the portions which are not part of the scope of enrichment were not deducted. Therefore, the original decision was reversed and remanded.