Criminal Code of the Republic of China
| This article is part of a series on |
 |
|---|
 Taiwan portal |
The Criminal Code of the Republic of China is the fundamental criminal law of the Republic of China (ROC). Commonly referred to as the "general criminal law", the Code is divided into two main sections: general provisions and specific provisions.
This Code is a type of substantive law (as opposed to procedural law), defining the substantive conditions under which the state exercises its criminal authority. It also functions as a general law (as opposed to special law), meaning that in cases where other laws contain specific provisions on the same matters, the provisions of those other laws shall take precedence.[1] In principle, the general provisions of the Criminal Code apply to all criminal statutes in the laws of the Republic of China. Criminal provisions found in other laws are typically referred to as subsidiary criminal laws. The specific provisions of the Code enumerate the primary categories of criminal offenses and their corresponding punishments.[2]
History
[edit]March 10, 1912, the first year of the Republic of China calendar, President Yuan Shikai promulgated the Provisional New Criminal Law, which became the first criminal code enacted following the establishment of the Republic of China.
The current criminal law in use is officially titled the Criminal Code (commonly referred to simply as the "Criminal Law"). It was preceded by an earlier version enacted on September 1, 1917, which is now commonly referred to as the Old Criminal Code.
Contents
[edit]General Provisions
[edit]The general provisions of the criminal law[3]are generally divided into the theory of crime, the theory of competition [4] the theory of punishment: the theory of crime deals with determining whether the criminal's behavior meets the legal requirements of the crime, the theory of punishment explores the legal effect of what kind of sanctions should be imposed according to law, and the theory of competition is the bridge between the two, clarifying the relationship between "crime and crime" and "punishment and punishment."
The content of the theory of crime generally includes the appropriateness of the constituent wrongdoing, Guilt (law), the stages of the crime (preparation, attempt, completion), principal offender and accomplice, action and inaction, etc.
The theory of criminal punishment mainly includes the types, application and execution of criminal punishment and security measures. Please refer to Criminal punishment and Security measures (law).
Specific Provisions
[edit]Common categories include Homicide, Assault, Theft, Robbery, Fraud, Corruption, Treason, and offenses related to public safety and national security.
Controversial Articles
[edit]Article 141-1 (Contempt of Congress – declared unconstitutional)
On May 28, 2024, the Legislative Yuan passed an amendment to Article 141-1 of the Criminal Code of the Republic of China, which stipulates that "Any public servant who makes a false statement regarding an important matter of concern to him during a hearing or interpellation (politics) in the Legislative Yuan shall be sentenced to fixed-term imprisonment of not more than one year, detention, or a fine of not more than NT$200,000.[5] After the Executive Yuan filed a reconsideration and rejected the motion, the Legislative Yuan upheld the original resolution, and President Lai Ching-te then requested the Constitutional Court to interpret the Constitution on June 24.[6]
On October 25, the Constitutional Court declared that the legislative purpose of the provision was difficult to be justified, and that the use of criminal penalties to pursue political responsibility violated the principle of proportionality. It was determined that this part was contrary to the purpose of the Constitution of the Republic of China to protect personal freedom, and therefore lost its validity.
Article 185-4, Paragraph 2 (Hit-and-Run Crime – Likely to Violate Article 12, Paragraph 1 of the Criminal Law)
[edit]Article 235 (Distribution of Obscene Articles, Constitutional Interpretation to Narrow the Constituent Conditions)
[edit]After the repeal of the Publication Act in 1999, Article 235 of the Criminal Law and Article 29 of the Child and Youth Sexual Transaction Prevention Act[7] became the main applicable laws and regulations for pornographic books and publications in Taiwan. However, since the definition of obscenity in the law is too vague and subjective, it is considered not to conform to the "principle of legality" and may infringe on freedom of publication and freedom of speech.
In 1996, the Constitutional Court issued Judicial Yuan Interpretation No. 407, defining obscene publications as "all publications that are objectively sufficient to stimulate or satisfy sexual desire, and cause shame or disgust in ordinary people and violate sexual moral feelings, and hinder social morality."
However, in 2003, Professor Josephine Ho, the convener of the Sex/Gender Research Office at National Central University, was prosecuted for posting links to bestiality photos on his website but was later acquitted. In 2004,Lai Zhengzhe, the head of the Jingjing Library, a gay bookstore was sentenced to 50 days' detention under Article 235 of the Criminal Law for importing male nude magazines from Hong Kong. In addition, the classification method for publications and video programs was being discussed at the time, which prohibited the sale of restricted materials in accordance with Article 235 of the Criminal Law. This sparked a discussion on whether banning books was actually being carried out in the name of classification. Therefore, in February 2006, a number of civil groups established the "Action Alliance to Abolish the Criminal Code 235" and requested a constitutional interpretation.
On October 26, 2006, the Judicial Yuan issued Judicial Yuan Interpretation No. 617. Although it did not rule that the act was unconstitutional, it further limited and interpreted obscenity, including "involving violence, sexual abuse, or bestiality without artistic, medical, or educational value" and "other obscene information or items that are objectively sufficient to stimulate or satisfy sexual desire and that the average person would find unbearable to be presented to the public or cannot tolerate and reject, without taking appropriate safety isolation measures to allow the average person to see or hear them[8]."
Article 239 (Adultery – declared unconstitutional and invalid)
[edit]On May 29, 2020, the Judicial Yuan Grand Justices issued Interpretation No. 79, declaring that Article 239 (related to Adultery) of the Criminal Code of the Republic of China and the proviso to Article 239 of the Criminal Procedure Law, which states that "the withdrawal of a spouse's complaint shall not be effective for the adulterer", violates the Constitution of the Republic of China and is invalid immediately.[9]
Article 304 (Coercion)
[edit]In 2013, during the Yuanli anti-megaphone car protest, many protesters adopted a sit-in approach to express their demands, but were prosecuted and convicted of coercion. This triggered legal questions about whether this violated the freedom of speech and freedom of assembly guaranteed by the Constitution of the Republic of China. On January 7, 2014, a seminar entitled "Sit-in, coercion? Constitutional protection and legal boundaries of citizen protests" was held on this topic.[10]
Article 310 (Defamation – Declaration of Constitutionality)
[edit]On July 7, 2000, the Grand Justices of the Judicial Yuan prepared and promulgated Interpretation No. 509 , declaring that the provisions of Article 310 of the Criminal Code of the Republic of China on Defamation do not conflict with the Constitution's protection of Freedom of speech, and cited the "Actual malice principle" created by the Supreme Court of the United States, pointing out that "although the actor cannot prove that the content of the speech is true, based on the evidence he presents, if he believes that he has reasonable reason to believe that it is true, he cannot be held criminally liable for defamation." This is a substantial and restrictive interpretation of the elements of the crime.
In the Constitutional Court's 112th Constitutional Judgment No. 8 issued on June 9, 2023, the court once again declared defamation to be constitutional, and supplemented the Interpretation No. 509 to clarify the scope of application and specific operation methods of the "truth defense clause". If the perpetrator conducts reasonable verification before publishing the speech, it meets the non-punishment requirements. Even if the evidence obtained through the reasonable verification process is not true, if the perpetrator does not have malicious intent or gross recklessness in citing false evidence, he should still not be punished.
See also
[edit]
References
[edit]- ^ 《中华民国刑法》第十一条(Article 11 of the Criminal Law of the Republic of China)
- ^ Shan-tian Lin, *General Principles of Criminal Law*, Sanmin Book Company, Taipei, 2013.
- ^ "法律百科｜簡介刑事判決書中判斷一個人是否犯罪的流程——三階層理論" [Briefly introduce the process of determining whether a person has committed a crime in a criminal judgment]. 法律百科 (in Chinese (Taiwan)). 2018-10-24. Retrieved 2025-05-27.
- ^ "法律百科｜被告的行為觸犯很多法律時，判決中真的會一一論罪嗎？什麼是犯罪競合？" [When the defendant's behavior violates many laws, will all the crimes be listed in the verdict?]. 法律百科 (in Chinese (Taiwan)). 2018-10-24. Retrieved 2025-05-27.
- ^ "行政院移請覆議藐視國會2法！7大原因曝光 卓榮泰：絕不是要升高朝野對立" [The Executive Yuan requested a review of the two laws of the National Assembly for contempt! 7 major reasons revealed Zhuo Rongtai: It is definitely not to escalate the confrontation between the government and the opposition]. Yahoo News (in Chinese). Archived from the original on 2025-02-23. Retrieved 2025-05-27.
- ^ 聯合新聞網. "藐視國會罪違憲 憲法法庭：立法目的難謂正當" [Contempt of Parliament is unconstitutional. Constitutional Court: The legislative purpose is not justified]. 聯合新聞網 (in Chinese). Retrieved 2025-05-27.
- ^ 《儿童及少年性交易防制条例》于2015年2月4日公布修正全文并更名为《儿童及少年性剥削防制条例》。(The revised "Child and Youth Sexual Transaction Prevention Act" was announced on February 4, 2015 and renamed the "Child and Youth Sexual Exploitation Prevention Act".)
- ^ 刘, 志源. "釋字617號 明示2類猥褻品" [Interpretation No. 617: 2 types of obscene articles]. Retrieved 2006-10-27.
- ^ 中央通訊社 (2020-05-29). "大法官會議：通姦罪違憲 即日起失效 | 社會 | 重點新聞" [The Supreme Court held a meeting: Adultery is unconstitutional and will be invalidated from now on]. 中央社 CNA (in Chinese). Retrieved 2025-05-27.
- ^ "靜坐，強制？ 公民抗議的憲法保障與法律界線" [Sit-in, or coercion? Constitutional protection and legal boundaries of civil protest] (in Chinese (Taiwan)). Archived from the original on 2014-10-29. Retrieved 2025-05-27.
