Mercenary Crime Cases：A Research on Influential Factors of Low Conviction Rate

Autor: Yao-Hui Chen, 陳耀輝
Rok vydání: 2011
Druh dokumentu: 學位論文 ; thesis
Popis: 99
This study is based on the totaled 80 ruled cases of committing mercenary crime held in the high court. The said cases involve violation of Paragraph 4 and 5 of Item 1 of Article 6 of the Corruption Offenses Ordinance during 2009 and 2010. In the study, it adopts the methodological approach of content analysis, under which an in-depth interview is engaged on 8 investigators with investigation experience of more than 10 years in the field of dedicated investigation work under the MJIB (Investigation Bureau of Ministry of Justice) on the offenses of corruption and embezzlement. To explore the impact factors on the outcome of low crime-determining rate in the aspects of investigation and hearing, the study also engages an origin research approach aimed at the analysis of the legal requisites satisfying the mercenary crime, the experience of investigation conducted by investigation institutions, and the difficulties of evidence collection. Judging from the ruling documents, the study finds: the ground that the judges of the full court sentenced defendants’ innocent status on the mercenary crime offenses is as follows, by the sequence order of offense frequency: due to the facts that the defendants did not violate “decrees,” the defendants did not have subjective mens rea of mercenary crime offense, what the defendants pursued for is not “illegal” interests, and the defendants did not have the status of government official, the requisites of the evidences collected by prosecutors and investigators for the above mercenary crime offenses prove insufficient for a determination of guilty status; therefore, the current perception of judges favors that the scope of mercenary crime offense violating the decrees does not include the abstract regulations within the administrative institutions like administrative regulations or only authority orders of regulating the personnel within the institutions; .the Public Service Act on Government Officials, Oath-taking Act, the Law of Public Officials avoiding Interests Conflict that involve the laws of morality and general nature do not belong to the scope of laws and regulations that regulate mercenary crime offenses; the prosecutors and investigators shall provide solid evidence(s), not conjectures, during the investigation to prove defendants’ subjective mens rea; the profits gained from the contractors’ conduct of works or labor of contractors, though acquiring via illegal bidding means, shall not be taken as illegal profits, and thus they shall be measured on whether the interests are illegal or not after deducting with reasonable share of profits. The above findings prove some degree of difference to what current prosecutors and investigators have perceived, and thus have resulted in judges’ decision of not guilty. From interviews with investigators, the study finds that the low crime-determining rate on mercenary crime offenses is mainly due to the fact that such crime is a general coverage of embezzlement offenses and when the violations of public officials shall not be taken as solid crimes like taking bribes, malpractices, embezzlement and frauds, then whether defendants’ behavior involves mercenary offense or not can be determined. Therefore, the requisites for such crime are blurred. First, like other embezzlement crime offenses, when judging the identification status of public officials, there stands substantial blurred room in the real world practice, though the Criminal Law was revised in 2005 in terms of the identification status, the authority status and the entrusted status of public officials; moreover, no description of “decrees” that public officials violate was ever made, and thus there is no way to solidly determine whether defendants’ behavior violates decrees or not since the decrees of central and local governments are too many; since the subjective mens rea on the embezzlement crime offense of public officials is very hard to verify via finding support evidence(s) afterwards, most of the cases are judged or conjectured by objective behavior; as to the difference on perceiving illegal interests, some believe that if public officials involve contractor’s bid-awarding, the profits gained by such contract shall then be taken as illegal, others believe that a careful consideration is necessary to determine whether certain part of the profits are contractor’ reasonable profits, and still no concrete calculation basis on the illegal profits of the contractor is ever existed; as to the evidence collection, recent change on the criminal lawsuit system, requisites for the embezzlement crime offenses, and revision of criminal law’s definition on public officials, issuance power of search warrant tickets and monitor warrant tickets returning to courts have increased the difficulty of investigation and crime-determining rate; performance evaluation system causes abuse cases under issuing/filing, and last but not the least too much heavy criminal punishment on mercenary crime offenses led to judges’ reluctant determination of such crime offenses by requiring more strict evidence(s). In short, by generalizing ruling documents and interviews, the common opinions of investigation and hearing institutions conclude that public officials violate decrees, subjective mens rea, requisites for gaining illegal interests are all hard to determine and verify, and thus become the major factors to low crime-determining rate. However, judges believe that insufficient evidence(s) also serve as a significant impact. On the other hand, the investigators believe that their evidence(s) are sufficient but the performance evaluation system and heavy sentence punishment on mercenary crime offenses cause judges reluctant to determine the guilty of the crimes by requiring more evidence(s), which shall serve as major cause. Lastly, this study proposes the followings for increasing crime-determining rate: first, the investigation unit’s performance evaluation system shall be reviewed, and the criteria for transferring or filing the lawsuit case shall be raised, which are intended to better improve the quality of case transferring and filing; also, the punishment for violating the Corruption Offenses Ordinance may be considered removed or returned to the general criminal regulations. Finally, the fine investigation work of the investigation unit(s) shall be deemed necessary, together with close communications with investigation and public prosecutors. So doing shall certainly better improve the crime-determining rate.
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