Chou Chan-chun: Using Constitutional Pretexts to Set Criminals Free

Chou Chan-chun: Using Constitutional Pretexts to Set Criminals Free
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
November 15, 2010

The Supreme Court has handed down its rulings in the four Chen family corruption cases. It has essentially nullified the legal opinions offered by Chou Chan-chun in the Second Financial Reform scandal trial. The Taipei District Court Full Court, led by Chou Chan-chun found former President Chen not guilty. It cited legal sophistries about "presidential authority" and the "official duties of the president." Fortunately the Supreme Court knows the difference between right and wrong. It has reaffirmed the correct legal principles. It has put the legal system back on track, in accordance with the understanding of a majority of the nation's citizens.

Chou Chan-chun expended a great deal of ink writing his judgment. He wrote that the president's authority was constrained by the constitution and 16 amendments. He wrote that the majority of scholars and judges also feel that the president has exceeded his executive authority. From this he concluded that promoting the Second Financial Reform "program" was not within the president's legal authority. When Chen Shui-bian intervened, he exceeded his authority. Since his conduct was not part of his official duty, therefore the money he collected cannot be considered bribes.

Such a legal opinion misapplies a dispute pertaining to constitutionally mandated presidential authority to criminal law regulating the conduct of civil servants, in order to arrive at the fallacious conclusion that "The president was innocent of corruption." Put simply, whether the president should intervene in a particular area of executive power is one thing. It is a constitutional matter. Whether a president who has already exceeded his executive authority is also committing a crime, is something else altogether. It is a criminal matter. The two must not be conflated.

The ruling handed down by the Supreme Court restored the case to the realm of criminal law. It stated bluntly that "Article V, Paragraph One of the Punishment of Corruption Act stipulates that accepting money or gifts based on one's official position, constitutes a crime. This includes all sorts of considerations disguised as gifts and other benefits. The term "official duties" refers to what a civil servant should do or must do within the scope of his duties. As long as his conduct bears a relationship to the nature of his duties, and he wields substantial influence during the performance of those duties, then his conduct is defined as his duty." The Supreme Court specifically mentioned several points. It stated that if a civil servant wields substantial influence during the performance of his duties, then his conduct is defined as his duty. This dissolves the fog of confusion Chou Chan-chun attempted to generate between constitutionally mandated presidential authority and criminal law. In other words, according to the Supreme Court, the president's official duties provided him with substantial influence over the Second Financial Reform "program." He took advantage of that influence to collect bribes, and that constitutes corruption. These are established facts. Under these circumstances, one may not arrive at the ludicrous conclusion that the president was innocent of corruption.

Another aspect of the Supreme Court's judgment is worth noting. It increased Lee Chieh-mu's sentence to three years and six months, without the possibility of parole. The Chen family corruption case involves four parts. In the second instance they were found guilty. But their sentences were reduced to an unreasonable degree. The most extreme example is Lee Chieh-mu. He was the mastermind behind the Longtan Land Acquisition scandal. He shared his practical expertise in the administration of the Science Park. He found ways to profit illicitly. Companies going under would allow the government to pick up their debt. Lee helped Ah-Bian and Ah-Chen to profit from the opportunity. He acted as Chen's "stalking horse." Contrast this with his former image as a "scholar for democracy." One truly has no reason to sympathize with him. He was granted probation during the second instance trial. This newspaper pointed out that the judge clearly pulled his punches. His conduct was completely unacceptable.

The Supreme Court now says that the "Original decision did not find Lee Chieh-mu deserving of any sympathy for the crimes he committed. According to the text of the original decision, he showed no remorse. Yet in accordance with Article 59 of the Penal Code, his sentence was reduced. But Article 59 of the Penal Code stipulates that mitigation of punishment requires expressions of remorse over one's criminal conduct. It applies only to defendants for whom the lightest penalty is still too severe." Therefore the original sentence amounted to a commutation of the sentence. This was illegal, and a misapplication the law. Therefore the Supreme Court rendered its own decision in the matter. It ruled that Lee Chieh-mu must serve time.

Also, the State Affairs Fund case must be retried. It is being retried by the Supreme Court, but can only be retried based on the Second Instance ruling. The grounds given for retrying the State Affairs Fund scandal include all applicable laws, but also mention "the impact of findings of fact." The original decision explained away many of the Chen families improper expenses as part of the president's official duties. It failed to pursue them. It ignored the "Southern Front" and other fraudulent schemes. Clearly the Supreme Court considered this unacceptable.

The State Affairs Fund case involves the crime of embezzlement of public property, as specified in Article Four, Paragraph One, Line One, of the Punishment of Corruption Act. The heaviest penalty that can be imposed is life imprisonment. The original sentence failed to include huge sums of embezzled funds. That was the only reason for the lighter sentences. The retrial will take into account these sums. If the findings of fact are overturned, and the sums involved become larger, it is possible that Ah-Bian and Ah-Chen's sentences may be increased.

周占春以憲政爭議混淆刑事判斷
【聯合報╱社論】 2010.11.15

扁家四大弊案最高法院宣判結果，形同反駁了台北地院周占春合議庭在二次金改弊案所持「總統職權」、「總統職務上行為」的見解，總算將法院的是非判斷標準，拉回至正確法理及多數國民法律感情認同的正軌。

周占春在其判決中花費巨大篇幅，論定總統職權僅限憲法本文和增修條文列舉的十六項權力；並且說，多數學者及大法官解釋，也都認為現今政治現實是總統侵越了行政權。他從而據此認定，二次金改既非總統法定職權，陳水扁介入，是越權行為，亦即非職務上行為，收錢即不可論以受賄。

這種見解其實是將憲政學理上有關行政權力歸屬的爭議，錯用到刑事法律規範公職人員行為的領域，遂生「總統貪汙無罪」的謬誤結論。簡單地說，總統該不該介入行政權的領域是一回事（憲政爭議）；總統在已然侵越行政權的既成事實下，有無藉此犯罪，則是另一回事（刑事判斷）。二者不可混為一談。

最高法院這次公布的判決理由，乃回歸到刑事判斷的領域，直接了當地宣示：「貪汙治罪條例第五條第一項第三款之對於職務上之行為收受賄賂罪，祇須所收受之金錢或財物與其職務有相當對價關係，即已成立，且包括假借餽贈等各種名義之變相給付在內……再所謂職務上之行為，係指公務員在其職務範圍內所應為或得為之行為而言，祇要該行為與其職務具有關連性，實質上為該職務影響力所及者，即屬相當」。最高法院特別指出幾個判斷點，如公務員在其職務範圍內所「得為」、「有關聯性」、「實質上為該職務影響力所及」等等，恰是破除了周占春以刑事審判思維和憲政學理爭議相混淆的迷霧。換言之，依最高法院的判斷標準，總統職務範圍在實質上能給予二次金改影響，並且藉此收賄，那就是貪汙。不可能在確定有此事實下，竟得出總統貪汙無罪的結論。

最高法院判決另一值得注意的地方，是改以重判李界木三年六個月有期徒刑，不得緩刑。扁家四大弊案部分，二審雖仍判有罪，卻無端大減刑度，其中尤以李界木為最。其在龍潭購地案中，扮演軍師角色，提供其經管過科學園區的實際經驗，擬定圖利的辦法，以利廠商倒債給國家、扁珍藉機貪汙；其為虎作倀的惡行，對照早年其「民主學者」的形象，實無給予同情的理由，而二審判決竟予緩刑。當時本報即指出，這等於是法官放水，甚為不當。

如今最高法院說，「原判決並未認定李界木之犯罪情狀有何顯可憫恕之情形，依原判決之記載亦無顯可憫恕之事實，卻依刑法第五十九條規定減輕其刑……而依刑法第五十九條所規定之得酌量減輕其刑，必其犯罪之情狀顯可憫恕，認科以最低度刑仍嫌過重者，始得為之」，所以原判決等於無端減刑，即有適用法則不當之違法。最高法院於是就這部分自為判決，重判李界木且使其必須入監服刑。

國務機要費案發回更審的發展亦值注意。雖然最高法院是法律審，只能在二審認定的事實上作判決；但在國務機要費發回更審的理由中，除了談及適用法律外，還特別提到了「影響事實認定」，顯然是對原判決就許多扁家不當開支擴大解釋均與總統公務有關不加追究、且漠視「南線專案」等造假行為，無法認同。由於國務機要費案涉及的是貪汙治罪條例第四條第一項第一款侵占公有財物罪，最重可判無期徒刑；而原判決是在大量排除侵占金額後，才判較輕刑度；未來更審重加論定的結果，若事實認定翻轉，數額變得龐大，則扁珍的刑度即不無再加重的可能。