Set Aside Cross-Strait Enmity, Give Priority to Law and Reason

Set Aside Cross-Strait Enmity, Give Priority to Law and Reason
Chang Chang-wen, Professor of Law
United Daily News (Taipei, Taiwan, ROC)
A Translation
February 8, 2011

The government of the Philippines has extradited 14 Taiwanese fraud suspects to the Chinese Mainland. Our Ministry of Foreign Affairs immediately lodged a protest. The MAC is negotiating with its Mainland counterpart, in the hope that the suspects can be turned over to Taipei. Will we be able to set aside ideology and cross-Strait enmity? Will we be able to give priority to the law, to reason, and return the 14 Taiwanese suspects to Taiwan? Will we be able to make those arrangements most consistent with jurisprudence?

Taipei argues that the suspects are from Taiwan. It argues that the perpetrators' nationality should determine which government has jurisdiction. Beijing argues that the victims are Mainland Chinese. It argues that the victims' nationality should determine which government has jurisdiction. It argues that the effects of the crime were felt on Mainland China. It argues that the guest nation should have priority. Manila argues that the crime was committed in the Philippines. It argues that the host nation should have priority. It would seem that every nation has a basis for its claims, and that every nation has reason on its side.

So which nation should have priority? The author feels we must decide which of the three factors, the nationality of the suspect, the nationality of the victim, and the nation in which the crime was committed, is the most relevant. Which government will see that justice is done? Which government will see that future crimes are deterred? The answer will determine which government should take charge.

The usual rule is that the nation which has jurisdiction, i.e., the nation in which the crime occurred, should take charge. Therefore, the Philippines' claim that it should have priority because the crime occurred within its jurisdiction, is valid. Mainland China's claim that it should have priority, is also legitimate. After all, the victims were Mainland Chinese. The repercussions of the crime were felt on Mainland China. Since the victims were on the Mainland, Beijing should find it easier to gather evidence. By contrast, Taipei's only connection with the case is the suspects are Republic of China citizens.

Suppose the Philippines had not extradited the suspects to the Mainland, but instead to Taiwan? Suppose Beijing, having accepted the suspects, in turn extradited them to Taiwan? How would Taipei go about conducting a criminal investigation? The crime was committed in the Philippines. The repercussions of the crime were felt on the Chinese Mainland. How would we go about collecting evidence? Would we subpoena Mainland Chinese victims, and compel them to come to Taiwan to testify? As we all know, the courts on Taiwan are hardly the most effective venues in which to hear criminal cases.

The standards governing the admissibility of evidence on Taiwan are extremely high. If the suspects were extradited to Taiwan, evidence gathering would not be easy. We might not be able to compel the victims to testify. The suspects might need to be released due to insufficient evidence. This would encourage ROC citizens to commit crimes overseas. Is this really what the public on Taiwan wants?

We should look into our hearts. Suppose the victims had been from Taiwan? How would we feel then? The Philippines decision to extradite ROC citizens to the Mainland may not have been entirely rooted in legal reasoning. Its diplomatic relations with the Mainland may have been a factor. The reality is we are at a diplomatic disadvantage. But this is exactly why we must appeal to the rule of law and the rule of reason. Otherwise, when reality and even law and reason work against us, how can we assert our rights? How can we defend Taiwan? Or, more accurately, how can we defend equality and justice?

A Commentary
排除兩岸情結 法理優先
United Daily News
February 8, 2011
陳長文／法學教授

菲律賓政府將十四名台籍詐欺嫌犯遣送至中國大陸，我外交部立即對菲提出抗議，陸委會並與陸方交涉，希望嫌犯能遣送回台。然而，排除意識形態糾結的「兩岸情結」，就法、論理，這十四名台籍嫌犯送回台灣，會是最合於法理的安排嗎？

台灣的主張是因為張三是台灣人（行為人國籍管轄）；大陸的主張是犯罪的受害人李四是大陸人（被害人國籍管轄），而且犯罪的結果也發生在大陸（客體領域原則）；而菲律賓的主張是，犯罪發生在菲律賓（主體領域原則）。看起來，每個主張都有其依據，都有理。

那麼到底最該由誰先管呢？筆者認為，應看那一個因素（嫌疑人國籍、被害人國籍、犯罪地）的聯繫關係最深。亦即由那一方來管轄，最能發現真實、實踐正義、制裁（嚇阻）犯罪。

一般而言，領域管轄（特別是由犯罪發生國）來管轄，是通常採取的方式。因此，菲律賓依領域管轄原則主張管轄權是有正當性的。而中國大陸主張管轄的法理基礎也有一定的強度，畢竟被害者是大陸人（犯罪結果也在大陸），由於被害人在大陸，證據調查也有便利性。相對的，台灣唯一的連結就是犯罪嫌疑人具有中華民國國籍。

試想，如果菲律賓不把人送到大陸而是送到台灣，或是大陸在接收了嫌犯後，又把嫌犯送到台灣。請問，台灣要如何進行犯罪調查？犯罪發生地在菲律賓，結果地在大陸，我們要如何蒐證？要如何把大陸的受害人傳到台灣來作證呢？可見台灣的法庭，並不是審理該案最有效的「便利的法庭」。

台灣對於刑事犯罪的證據求的強度相當高，當這些嫌犯被遣送回台灣，在蒐證不易，甚至連被害人傳喚都不可得的情況下，可能的情形是，嫌犯將以罪證不足被釋放，這時，反而等於變相鼓勵國人透過第三地向海外犯罪。這樣的不正義會是台灣人民所希望的結果嗎？

不妨將心比心，想想如果相同的犯罪受害人是台灣人時，我們又會作何感想？當然，很顯然，菲律賓將我國籍的嫌犯遣送大陸，也未必完全是基於法理的判斷結果，考量的可能是其與大陸的邦交。這一點，的確是台灣外交上不利處境的「現實」。但也正因這樣的「現實」，更應該訴之以法、訴之以理，否則當現實不站在台灣這一邊，而連「法理」都沒辦法站得住腳時，我們要如何去伸張權利、捍衛台灣（或，更正確，公平正義）的利益呢？