The Supreme Court rendered the 108-Tai-Shang-3336 Decision of December 12, 2019 (hereinafter, the “Decision”), holding that if an actor has already started to engage in the previous act but changes his/her mind and acts afterwards due to changes in the situation afterwards or any unexpected circumstances, since it is difficult to regard them as the same act according to general social construct, such acts shall be punished separately and shall not be treated as imaginary joinder of offenses.
According to the facts underlying this Decision, the Defendants obviously were aware that Financial Product X issued by Company A of the US was a US collateralized mortgage obligation investment certificate whose sale was not approved by the competent authority of Taiwan, and which was an offshore fund not effectively reported to the competent authority. In 2005, the Defendants began to introduce it and provided profitability analysis opinions to the investors and distributed such offshore fund. Financial Product X, which had been sold from 2005, would be successively mature in 2015. The Defendants were clearly aware that Company A of the US would be unable to pay for the redemption of the above offshore fund. To avoid early redemption by the investors, with the knowledge that the share certificates of Company B and Investment Contract C are marketable securities under the Securities and Exchange Law, the Defendants communicated their criminal intent to illegally operate securities business and requested the investors to convert the investment object Financial Product X into Company B’s shares from June 2013 before underwriting the above marketable securities or serving as their distributor by soliciting the investors to enter into the Investment Contract C. The original trial court imposed an enhanced penalty for one offense on the Defendants based on imaginary joinder of offenses for committing the offense of illegal distribution of offshore funds under Article 107, Subparagraph 2 of the Securities Investment Trust and Consulting Law with the Defendants respectively sentenced with imprisonment and a fine.
According to the Decision, after the implicated offense was removed from the Criminal Code, if two offenses with the means-end or causal relationship which was previously assessed as an implicated offender have partial sameness or their implementation stages of the acts can be considered the same, the requirements for one act which involves multiple offenses are met, and such offenses shall be dealt with by imaginery joinder of offenses. If the two acts as engaged do not partially overlap with distinctive differences between the implementation stages or if an actor has begun to engage in a previous act but acts afterwards due to subsequent change of circumstances or a change of mind as a result of any sudden situation, the acts shall be considered as different acts and penalized separately and cannot be dealt with by imaginery joinder of offenses.
It was further pointed out in this Decision that it is necessary to consider if the Defendants still continued to sell the offshore fund issued by the offshore fund company after knowing that it was unable to pay for the redemption of Financial Product X. If the Defendants did not, then it is necessary to consider if there is an overlap or conformity between partial acts between the Defendants’ acts of selling the offshore fund and their illegal operation of securities business from June 2013. Were the previous act of the Defendant to illegally distribute the offshore fund and the subsequent act to switch to the illegal operation of securities business always derived from a single plan and criminal intent or as a result of a change of mind due to subsequent change of circumstances? Does the previous and subsequent acts have the same characteristics and patterns? The above questions relate to the issue of whether the different types of offenses committed by the Defendants at different times should be dealt with as one offense with enhanced penalty based on the relationship of imaginary joinder of offenses under the first part of Article 55 of the Criminal Code or penalized separately as different offenses should be further explored and clarified. The original trial court was unlawful for its failure to conduct thorough investigation and achieve sufficiency of grounds when it jumped to the conclusion that the Defendants’ offenses should be dealt with as one offense with enhanced penalty by imaginery joinder of offenses.