Frank Sun
The Supreme Court rendered the 107-Tai-Shang-1840 Decision of May 15, 2019 (hereinafter, the “Decision”), holding that in case of potential facts not explored by the first instance court, if the second instance court believes that the case has potential facts according to the court evidence and files for this case and such potential facts are linked to the apparent facts based on the relationship of the same offense, the effect of appeal should extend to the potential facts.
According to the facts underlying this Decision, the Appellants jointly solicited investors for investment in the name of Company A. The original trial court held that since the Appellants jointly committed the offenses of illegally operating deposit business, such offenses are substantively one offense as a collective offense. According to the indictment, the Appellants accepted the quasi-deposit paid by Investor A, who was not a party to this litigation, by way of “remittance” under the pretext of investment, but the indictment did not cover the portion paid “in cash” by Investor A. In addition, the Appellants were not indicted for the behavior of absorbing investment funds in the name of another group, either. The Appellants asserted that the wanton expansion of this portion as criminal facts and the investigation, hearing and sentencing by the original trial court without necessary procedural notification or explanation of the reasons undermined the Appellants’ exercise of their defensive right, and that the original trial court was erroneous for failing to decide on their claims and for insufficiency of grounds for the decision.
According to the Decision, the “criminal facts” set forth in the prosecutor’s indictment are the targets of the court trial and also define the scope of the Defendants’ defense. Therefore, if such details as indicated “are sufficient to represent the scope of indictment” so that the court may determine the scope of hearing and to allow the Defendants to prepare for their defense based on their knowledge of the criminal facts relied on for the indictment, the indictment is complete.
Moreover, according to this Decision, Article 267 of the Code of Criminal Procedure provides that if the prosecutor issues an indictment based on part of the criminal facts, the effect of the indictment shall extend to all of the facts. This is known as the principle of indivisible public prosecution and pertains to the scope of “facts” relevant to the indictment. Therefore, if the court files indicate that several offenses are the same offense as a matter of substance or adjudication, while the prosecutor only prosecutes based on a portion of the facts, the court is still not bound by the indictment and may investigate and try unindicted portions. In addition, under the principle of indivisibility of appeal for unique cases, the superior court should still render a comprehensive adjudication based on all of the facts. Therefore, the first instance court only rendered a decision based on apparent facts but failed, out of carelessness, to explore potential facts. Now that the case was appealed, if the second instance court determines that there are potential facts by supplementing and expanding the results based on the case files with such potential facts linked to the apparent facts by the relationship of the same offense, such potential facts should not be divided or ignored. Therefore, the effect of the appeal should certainly extend to the potential facts, which should be incorporated into the scope of trial by the appellate court, and the issue of illegal adjudication beyond the scope of trial for deciding on unclaimed matters under the last part of Article 379, Subparagraph 12 of the same law does not arise.
It was further indicated in this Decision that under the first part of Article 394, Paragraph 1 of the Code of Criminal Procedure, the court of third instance should base its decision on the facts determined in the second instance decision to determine the appropriateness of the application of law. Whether the type of crime pertains to part of a collective offense or successive offense or can simply constitute a stand-alone offense, or pertains to ideal concurrence of offenses or is derived from separate criminal intents and thus consists of offenses which take place at different times, are independent or undermine different legal interests and are several offenses for combined punishment falls within the authority of the trial court that cites evidence and determines facts. If empirical or logical rules that objectively exist are not violated, there would be no legal violation.