November 2020
The "responsible person of an act" under Article 125, Paragraph 3 of the Banking Law refers to the responsible person involved in decision-making and execution and causing the juristic person to commit a crime through his/her dominant role (Taiwan)
Elva Chuang
The Supreme Court rendered the 109-Tai-Shang-2077 Decision of May 21, 2020 (hereinafter, the "Decision"), holding that Article 125 of the Banking Law imposes penalties for illegal acceptance of deposits and the business subjects targeted for the penalties should be natural persons or juristic persons.
It was specifically pointed out in this Decision that Article 29, Paragraph 1 of the Banking Law specifically provides that except as otherwise stipulated by law, a non-banking institution shall not operate any business that "accepts deposits." The penalty on an offender varies depending on whether the offender is a natural person or a juristic person. In case of an offense committed by a natural person, a penalty will be imposed under Article 125, Paragraph 1 of this law. In case of an offense committed by a juristic person, in addition to the penalty imposed on the responsible person of its act in accordance with Paragraph 3 of the same article, a fine will be imposed on the juristic person in accordance with Article 127-4 of the same law. In addition, the responsible person of an act as set out in Article 125, Paragraph 3 of the same law does not mean that a penalty may be directly imposed on the statutory responsible person of such juristic person simply because of the illegal act of the juristic person. For the responsible person of the act to be punishable pursuant to such provision, it is still required that such responsible person is involved in the decision-making and execution and causes the juristic person to commit the offense of illegal operation of deposit-taking business through his/her dominant role. As for other employees of the juristic person who knowingly participate in the commission of a crime, they will be penalized as joint principal offenders pursuant to Article 31, Paragraph 1 of the Criminal Code.
It is also indicated in this Decision that since none of the Defendants in this case, who participated in the acts engaged by the business entity to illegally accept deposits as employees of the business entity, is the business subject, they should not be penalized pursuant to Paragraph 1 of the same law. Instead, Article 125, Paragraph 3 and Paragraph 1 (first part) of the Banking Law should apply in accordance with Article 31, Paragraph 1 of the Criminal Code to penalize the responsible person of the act of the juristic person for illegal acceptance of deposits under the Banking Law.
The Supreme Court rendered the 109-Tai-Shang-2077 Decision of May 21, 2020 (hereinafter, the "Decision"), holding that Article 125 of the Banking Law imposes penalties for illegal acceptance of deposits and the business subjects targeted for the penalties should be natural persons or juristic persons.
It was specifically pointed out in this Decision that Article 29, Paragraph 1 of the Banking Law specifically provides that except as otherwise stipulated by law, a non-banking institution shall not operate any business that "accepts deposits." The penalty on an offender varies depending on whether the offender is a natural person or a juristic person. In case of an offense committed by a natural person, a penalty will be imposed under Article 125, Paragraph 1 of this law. In case of an offense committed by a juristic person, in addition to the penalty imposed on the responsible person of its act in accordance with Paragraph 3 of the same article, a fine will be imposed on the juristic person in accordance with Article 127-4 of the same law. In addition, the responsible person of an act as set out in Article 125, Paragraph 3 of the same law does not mean that a penalty may be directly imposed on the statutory responsible person of such juristic person simply because of the illegal act of the juristic person. For the responsible person of the act to be punishable pursuant to such provision, it is still required that such responsible person is involved in the decision-making and execution and causes the juristic person to commit the offense of illegal operation of deposit-taking business through his/her dominant role. As for other employees of the juristic person who knowingly participate in the commission of a crime, they will be penalized as joint principal offenders pursuant to Article 31, Paragraph 1 of the Criminal Code.
It is also indicated in this Decision that since none of the Defendants in this case, who participated in the acts engaged by the business entity to illegally accept deposits as employees of the business entity, is the business subject, they should not be penalized pursuant to Paragraph 1 of the same law. Instead, Article 125, Paragraph 3 and Paragraph 1 (first part) of the Banking Law should apply in accordance with Article 31, Paragraph 1 of the Criminal Code to penalize the responsible person of the act of the juristic person for illegal acceptance of deposits under the Banking Law.
