The Legal Dilemma of Exit Bans

Liu T'ai-ying's application to lift his exit ban was approved by the panel of judges at the Taipei District Court handling the Hsin Jui Tu case, shocking prosecutors who intend to file an interlocutory appeal. However, unless the prosecutors simultaneously apply for and are granted a suspension of execution (Article 409 of the Code of Criminal Procedure), regardless of the appeal's outcome, Liu is highly likely to successfully leave the country. This case inevitably recalls public controversies in recent years sparked by courts granting applications to lift exit bans in major criminal cases, such as the Wu Tse-yuan and Lo Fu-chu cases. If we fail to promptly and seriously address the predicament of insufficient legal norms governing exit bans, controversies like the one surrounding Liu T'ai-ying are unlikely to be the last.

An exit ban restricts citizens' freedom to enter and leave national borders. According to statistics provided by the National Immigration Agency, the number of travel bans totaled 42,226 over the past three years. Among these, 6,077 cases were judicial in nature—such as individuals wanted under warrants or banned from leaving by judicial or military judicial authorities—while 36,149 exit bans were non-judicial in nature under other regulations. Over the past three years, more than 40,000 people have been subjected to exit bans, a staggering figure that suggests relevant authorities may be arbitrarily restricting citizens' freedom to leave the country. In particular, the legal basis and causes for the more than 30,000 non-judicial exit bans deserve serious attention and review (such as the constitutionality and justification of imposing exit bans on grounds of tax arrears). Furthermore, while the number of exit bans due to judicial cases also reaches over 6,000, and judicial practice broadly interprets 'restrictions on residence' as the legal basis for exit ban dispositions, the Code of Criminal Procedure still lacks comprehensive and explicit statutory provisions regarding the constitutive requirements for exit bans, the duration of such restrictions, and available remedies. For instance, in Liu T'ai-ying's recent application to lift his exit ban, what conditions should the judge consider to decide whether to grant or deny the request? Should a court session be held for both parties to debate? Can an exit ban be 'temporarily' lifted or granted with 'attached conditions' (as in the Lo Fu-chu case)? What are the legal consequences of violating a court ruling? Should there be an exceptional rule for rulings to lift exit bans, requiring them to become final before execution? Or should an immediate appeal system be established to prevent ineffective appeals? In fact, it is not only necessary to strengthen regulatory density for judicial exit bans; there is an even greater need to construct a comprehensive set of regulatory measures for non-judicial exit bans in order to safeguard citizens' freedom to enter and leave national borders.

Considering the current reality that our citizens frequently and heavily travel internationally for tourism or business, existing laws are severely inadequate in protecting this fundamental right to travel and conduct business freely. In particular, some citizens facing exit bans are only informed of their restricted status upon arriving at customs, unable to leave the country in a manner that is both humiliating and distressing, thereby undermining human dignity. Although a court ruling on detention constitutes a severe infringement upon personal freedom, the Code of Criminal Procedure clearly defines the constitutive requirements, grounds for revocation or release, and time limits for detention. Moreover, remedies exist for wrongful detention, and compensation for miscarriages of justice can even be claimed. Although an exit ban does not severely infringe upon personal freedom in terms of 'quality' in the way detention does, when viewed in terms of case volume, the likelihood of citizens being subjected to exit bans far exceeds that of detention. The infringement caused in terms of 'quantity' is clearly more severe than detention. Yet, for damages arising from erroneous or illegal exit bans (such as death resulting from the inability to travel abroad for medical treatment, or losses from being unable to attend family weddings, funerals, or business events abroad), there is not only no mechanism for miscarriage-of-justice compensation, but even claims for state compensation are difficult to establish. Is this fair? While exit bans undoubtedly serve practical needs, should they not be subject to restraint and limitation?

※ Published in: The Liberty Times