Emily Chueh
The Supreme Court rendered the 108-Tai-Shang-3327 Decision of December 12, 2019 (hereinafter, the “Decision”), holding that the standards applied by the court to change the legal provisions applied by the prosecutor shall be the basic social facts relied on for the prosecution and the commonality of the nature of the crimes in terms of their constituting criteria.
According to the facts underlying this Decision, A was obviously aware that the shareholders are required to actually pay the share subscriptions. In the absence of actual payment, it is not permitted to just use a document to indicate full payment has been made. However, to handle the capital increase registration, Company B retained unwitting C to wire NT$10.6 million to Company B’s account at Bank X before NT$10 million was withdrawn and deposited into Company B’s account at Bank Y in the name of D to serve as the share subscription payment for capital increase. Materials such as the bank book for the inward remittance by Company B in the name of D were then audited and certified by unwitting Certified Public Accountant E to issue an audit report for the increase of capital which indicated that the share subscriptions for the capital had been paid up. An application was subsequently filed with Taipei City Government to register the capital increase of Company B. As a result, the civil servant in charge of registration who only had the authority to formally review the application was led to believe that Company B had met the criteria for capital increase, approved the registration and registered the false capital increase in the registration form of Company B, which falls within the authority of the civil servant. This is sufficient to impair the accuracy of company registration administration by Taipei City Government. This case was referred to the prosecutor for investigation and prosecution by the Taipei Field Investigation Office of the Bureau of Investigation.
According to the Decision, Article 300 of the Code of Criminal Procedure provides that a decision that imposes or exempt criminal penalties may change the legal provisions applied by the prosecutor with respect to the criminal facts in the prosecution. To wit, the court may freely determine facts and apply laws to the extent that the identity of the facts is not undermined. The standards for determining the identity of facts should be the basic social facts relied on by the prosecutor’s prosecution to establish the illegality and the commonality of the crimes in terms of the constituting criteria of the crimes.
It was further indicated in this Decision that in view of the above facts that “the legal representative of the company was obviously aware that the shareholders did not actually pay up the share subscriptions due to the company and that the application document indicated that the share subscriptions were paid up,” and that “the civil servant’s registration of the government documents she/he is responsible for was sufficient to impair the interest of the public or others, since the constituting criteria for the two crimes are different, they are imaginative joinder of offenses committed with one act and, in accordance with Article 55 of the Criminal Code, shall certainly be penalized with the heavier penalty under the first part of Article 9, Paragraph 1 of the Company Law. The prosecutor prosecuted A for his act which allegedly violate Article 9, Paragraph 1 of the Company Law, while the original trial court believed that A only committed the offense of causing a civil servant to enter false records under Article 214 of the Criminal Code. Although the original trial court informed A of the alleged additional offense under Article 214 of the Criminal Code on the trial date, still the original trial court failed to investigate the above facts not mentioned in the indictment and separately determined and to provide an opportunity to A and his defense attorney to present their arguments. Therefore, the litigation procedure so implemented is not completely without defect. From the actor’s perspective, there was only one act according the concept of natural behavior with respect to the offenses under the first part of Article 9, Paragraph 1 of the Company Law and Article 214 of the Criminal Code and such act was engaged due to one single decision to register the company’s capital increase. Therefore, the offenses should be regarded as one criminal act. Now that the constituting criteria of the two offenses are different, if the facts associated with these two are both accepted and both offenses are prosecuted, this would be a case involving the joinder of offenses. Since the prosecution can only give rise to one litigation relationship to the court, if a portion of charges are proven while the other charges cannot be substantiated during the court trial, certainly only the guilty portion should be indicated in the main text of the decision, while the portion of the charges that cannot be proven only need to be explained in the decision reasons along with the indication that there is no need to separately indicate the exoneration in the main text. However, the original trial court made a mistake for applying rules improperly under Article 300 of the Code of Criminal Procedure by electing to change the legal provisions applied by the prosecutor for the indictment and penalizing the lighter offense of causing a civil servant to enter false records instead.