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Lin Yi-shih case sets
an unhealthy precedent
By Wu Ching-chin §d´º´Ü
On Tuesday last week, the Taipei District Court announced its verdict in the
corruption trial of former legislator and Executive Yuan secretary-general Lin
Yi-shih (ªL¯q¥@).
The court found Lin not guilty on all charges of corruption filed against him by
the Supreme Prosecutors¡¦ Office Special Investigation Division (SID). The only
corruption-related offense Lin was found guilty of was failing, as a public
official, to account for the source of an increase in his personal wealth. It
made Lin the first person to be found guilty of this offense in Taiwan.
In April 2009, the legislature amended the Anti-Corruption Act (³g¦¾ªv¸o±ø¨Ò), adding
Article 6-1. This article stipulates that when public officials¡¦ wealth is found
to have increased in a way that is inconsistent with their normal income, they
are obliged to account for the anomaly. If they refuse to account for it, give a
false account or are unable to provide a credible explanation, they can be
handed a maximum sentence of three years in prison.
The purpose of this provision is to prevent and fight corruption by penalizing
perpetrators at an early stage. However, the wording of this article is such
that only defendants suspected of an offense under the Anti-Corruption Act are
obliged to give an account of inconsistent increases in their personal wealth
and it is up to prosecutors to decide whether the defendant has to provide an
explanation. Under such circumstances, it is hard to avoid having situations in
which suspects are treated differently depending on who is involved.
In November 2011, the legislature sought to resolve this problem by further
amending the law. Besides raising the legally prescribed penalty from three
years in prison to five, the amendment extended the range of people to whom the
act applies to include not just those charged with corruption, but also those
accused of gaining from illegal activities such as prostitution, pornography,
gambling, organized crime, human trafficking, narcotics, smuggling and firearms.
Paragraph 10 of Article 6-1 of the act makes it clear that a public officials
who abuses ¡§the power given by one¡¦s official position, the opportunities and
means thereof¡¨ to commit a criminal offense and whose wealth is found to be
inconsistent with their normal income are obliged to explain the anomaly.
However, although the range of situations covered by the act has been extended,
whether anything will be done still depends on prosecutors¡¦ willingness to
investigate. In other words, when a serious incident of corruption is discovered
and a public official is required to explain the source of his or her personal
wealth, prosecutors may ignore the felonies that lie behind the anomaly and
merely charge the person with having assets that cannot be accounted for. The
Lin case shows exactly how this kind of situation can happen.
The SID has long known from its investigations that the amount of money involved
in Lin¡¦s case is much more than the NT$63 million (US$2.13 million) he has
admitted to having. Prosecutors should try to find out whether this
unaccounted-for money is unlawful income derived from other activities.
However, the court, failing to recognize the characteristics of this kind of
crime, did not instruct prosecutors to investigate whether other, even more
serious offenses had been committed. Instead, it handled Lin¡¦s case merely in
terms of the possession of unaccounted-for assets.
This not only let the defendant get away with a relatively light sentence, but
it also allowed the charge to function as a shield that lets officials evade the
more serious charge of corruption.
The verdict in the Lin case sets a legal precedent that Taiwan would be better
off without.
Wu Ching-chin is an associate professor in the Department of Law at Aletheia
University.
Translated by Julian Clegg
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