If Law Making and Law Enforcement Do Not Change, Neither Will the Next Ruling

If Law Making and Law Enforcement Do Not Change, Neither Will the Next Ruling
United Daily News Editorial (Taipei, Taiwan, ROC)
A Translation
November 30, 2015

Executive Summary: All six defendants in the first instance Ting Hsin rancid cooking oil trial have been found not guilty. The public is in an uproar. All three presidential candidates have vigorously condemned the verdict, and backed the prosecution fully. The problem is that law making and law enforcement are behind the times. Criminal investigators are lax when gathering evidence. Judges apply the law mechanically. A public that seeks justice under such a system is certain to be disappointed.

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All six defendants in the first instance Ting Hsin rancid cooking oil trial have been found not guilty. The public is in an uproar. All three presidential candidates have vigorously condemned the verdict, and backed the prosecution fully. The problem is that law making and law enforcement are behind the times. Criminal investigators are lax when gathering evidence. Judges apply the law mechanically. A public that seeks justice under such a system is certain to be disappointed.

A sound rule of law system requires up to date legislation, well-trained law enforcement personnel, as well as righteous judges with integrity. All three are indispensable. On Taiwan, all three are lacking. Political factors prevent getting to the root of the problem. Barriers have been erected over time that frustrate the rule of law. The verdict in the Ting Hsin case was a let down. Blaming "dinosaur judges" however, misses the point. The verdict was an inevitable consequence of the existing legal system.

The not guilty Ting Hsin verdicts can be chalked up to several factors. One. The Ting Hsin case provoked public outrage. Rancid oil imported from Vietnam was used as raw material. This came as a shock. Yet the "Food Safety and Health Management Law" addresses only the finished product, not the raw materials themselves. The law provided a loophole. Ting Hsin argued that after "refining". the impurities were removed, and that the final product met national standards. In other words, the raw material may make one gag, but it cannot be proven to be harmful to humans. Food safety crises erupt repeatedly. The "food safety law" clearly requires revision.

Two. The Changhua District Prosecutors Office investigated the Ting Hsin rancid imported Vietnamese oil case for only 13 days before it decided to prosecute. Superficially this conveyed an impression of speed and efficiency. In fact, it acted too hastily. Its negligence proved fatal, and resulted in a failed prosecution. The prosecutor in the Ting Hsin case used the "rapid screening method" instead of the standard, officially recognized "column chromatography" method. This led to testing errors. The prosecutors' Vietnam investigation was inadequate. On scene collection of evidence led prosecutors to accuse Ting Hsin of using oil from diseased pigs. Defense attorneys refuted this accusation. Prosecutors collected corroborative evidence in Vietnam six months after they issued their indictment. Yet their investigation record still contained mistakes. Were prosecutors overzealous? Were they inadequately prepared? Either way, they left the accused loopholes by which to escape.

Three. The public was disgusted with Ting Hsin. Yet judges were still willing to stick their necks out and find Ting Hsin not guilty, in spite of extreme discontent among the public. Judges refuses to dance to the tune of mob sentiment. That at least suggests an independent judiciary. Unless of course someone can prove that the presiding judge accepted bribes or was swayed by lobbyists. The public may be deeply dissatisfied. But the most it can say is that the judge was a legal hack. This is precisely the bottleneck that the rule of law on Taiwan has encountered in recent years when it comes to food safety. Populist sentiment notwithstanding, the high walls erected by professional technocrats and legalists, food safety has often gone down in defeat. To solve the problem, one must return to the source, to legislation, to more professional technological and legal gatekeepers, to overcome these gangsters in the food industry.

The Ting Hsin defendants have been found not guilty in the rancid oil case. This is certainly upsetting. But think back to wave upon wave of food safety crises. The culprits were caught, but eventually let off with a slap on the wrist. Ting Hsin is hardly an isolated case. The Flavor Full and Chang Chi cases both caused an uproar. The former company adulterated sesame oil with cottonseed oil. Health authorities fined the company 4.6 billion NT. The latter company passed off cottonseed oil as grapeseed oil. It was fined 18.5 billion NT. But the Ministry of Health and Welfare withdrew the charges and reduced the penalties, for a variety of reasons. The public did not appear too concerned. The Yongchang Company used industrial grade plaster to make tofu. It was recently acquitted. Consumers reacted with indifference. Why is the public indignant about Ting Hsin? Is it only because it makes for a larger target? If so, don't we have a problem with selective perception?

Is the presiding judge in the Ting Hsin case a courageous jurist, or merely a legal hack? We cannot be sure. But it is certain that the normalization of justice on Taiwan cannot rely on public anger, prosecutorial passion, or judges armed with law books. It requires a legal system that has kept up with the times, meticulous law enforcement, and judges with both idealism and wisdom.

The biggest problem now is legislative. Most legislators lack professionalism and vision. Even worse, they lack awareness concerning the role of legislation. Many legislators merely seek time in the spotlight. They seek merely to show off their gift for gab. None seek to address serious issues. Given their mindset, how we can craft appropriate legislation to stop clever profiteers from finding ways around the law? Legislative elections are looming. The public would do well to consider the ins and outs of this problem.

聯合／立法和執法品質不改，下次判決依舊如此

2015-11-30 01:18 聯合報 聯合報社論

      

頂新劣油案一審判決六名被告均無罪，各界譁然，三組總統候選人不約而同強烈譴責，力挺檢方上訴到底。問題是，回頭審視我國立法和執法的品質，法律規範跟不上時代需求，執法者偵查蒐證丟三落四，法官則只能死抱法條；在這樣的體制下，光靠民怨滔天要得到司法正義，注定要失望。

健全的法治，要靠與時俱進的立法、訓練有素的執法人員、以及正直不阿的司法官共同持守，三者缺一不可。在台灣，這些制度性環節環環皆有缺損，但由於種種政治因素作祟，這些問題始終無法逐一獲得正本清源的解決。日積月累，便形成層層牽制、互相拉扯的作用，阻滯社會法治的建立。這次，頂新案的判決結果令人失望，若完全歸咎法官判決太過「恐龍」，恐怕失之簡化；事實上，這是整個法律體制不良的必然結果。

綜合而論，頂新劣油獲判無罪，可歸納為幾項因素：第一，頂新案引起社會群情激憤，主要是摻用了越南進口之餿水油為原料，令人髮指；但是，我國《食品安全衛生管理法》對食品的規範，卻只問成品是否合於標準，而不問原料來源如何。這個法條，變成了頂新脫罪的巧門。頂新辯稱，油品經過「精煉」，所有不合格的雜質均遭去除，最後的成品合於國家標準。換言之，原料雖然噁心，卻無法證明其危害人體。經過一而再、再而三的食安風暴，這部漏洞重重的《食安法》，顯然有大修之必要。

第二，彰化地檢署當初偵辦頂新越南餿油案，僅花短短十三天偵蒐即將頂新起訴；表面上看似效率神速，卻也為了求快，而留下致命疏失，成為敗訴的關鍵。其間的疏誤，例如檢察官檢驗頂新油品採取「快篩法」，而非官方認定標準的「管柱層析法」，致檢驗出現誤差；又如，檢方赴越南的調查缺乏充分的第一現場採證，使其指控頂新油料來源摻有病豬之指控，遭被告律師駁倒。此外，包括起訴半年後再赴越南補強證據，乃至誤繕偵查筆錄等等，都說明檢察官不論是求功心切或準備欠周，都留下了程序疏失，讓被告有機可乘。

第三，在社會民意對頂新反感如此強烈的情況下，法官仍然甘冒大不韙判決頂新無罪，儘管極令外界不滿，但法官不跟隨民意的魔棒起舞，至少顯示了司法的獨立性。除非有人能證明本案法官收受不當賄賂或接受關說，否則，再如何不滿，充其量也只能指摘這是「法匠主義」的判決。然而，這也正是近年台灣法制在食安問題上屢屢碰到的瓶頸：儘管民粹主義聲勢高張，但面對科技主義和法條主義的專業高牆，最後仍往往敗下陣來。要解決此一問題，正本溯源，還是要回到立法上去尋求答案，用更高的科技及法律專業把關來戰勝這些食品界的宵小敗類。

頂新劣油的無罪判決固然令人扼腕，但回顧幾波食安風暴中揪出的大小禍首，最後遭輕輕縱放的，何止頂新一家。包括先前沸沸揚揚的富味鄉及大統長基案，前者被查獲在廿多款香油中摻入棉籽油而遭衛生部門重罰四．六億元，後者則以棉籽油混摻為葡萄籽油遭罰十八．五億，但事後均遭衛福部訴願會以不同理由撤銷裁罰，民眾對此似乎沒有太多關注。包括被控販售「工業石膏」供人製作豆花的永昌公司，近日獲判無罪，消費者也不了了之。那麼，人們獨對頂新案義憤填膺，如果只是因為其目標更大，會不會有選擇性認知的問題？

負責頂新案的法官，究竟是勇敢司法人，抑或是顢頇法匠，我們難以斷言。但可以確定的是，台灣司法要成為讓人足以尋求正義的管道，絕對不能只靠民眾的激憤，或是檢察官的一腔熱血，甚至是法官的滿腹法條；而是必須有跟得上時代變化的法律制度，有一絲不苟鍥而不捨的執法者，更要有理想與智慧兼具的司法官。

目前問題最大的，就在立法這端。我們的立法委員多半缺乏專業、缺乏瞻矚，更缺乏對立法職能的認知，許多立委多數時候只想出個鋒頭、逞個口舌之快，沒有人想認真解決問題。在這種心態下，我們如何能修出適當的法令，來管理那些巧費心思鑽法律漏洞的奸商？正逢立委選舉，民眾不妨好好思考這個問題的本末。