Criminal Liability for Fraud in Providing Dummy Accounts—Also a Review of Taiwan High Court Criminal Judgment 96-Shang-Yi-2671 and Taipei District Court Criminal Judgment 96-Yi-80

Defendant B in this case was a patient suffering from "paranoid schizophrenia" and held a severe physical and mental disability handbook. Between July and August 2006, after seeing a classified advertisement in a newspaper stating that using a post office passbook to help people process loans could be exchanged for cash, Defendant B contacted two unrecognized men, A and B, via the contact info in the advertisement. B handed over the passbook, ATM card, and password of a post office account opened specifically for receiving living allowances for persons with disabilities to these two men. At the time, the two men stated that they would wire money to B's bank account, but no payment was made afterward, and B received no answer when calling them. B did not report the matter to the police, but on September 4, 2006, reported the account lost via the telephone automated voice system. However, this loss-reporting action only invalidated the passbook and did not affect the use of the ATM card. On September 6, the passbook was reactivated, and funds were deposited into it.

On September 16, 2006, Plaintiff A (the victim in this case) received multiple phone calls in which the caller claimed that the "Macau Galaxy Entertainment Company" was holding a lucky draw and that Plaintiff A had won. However, to claim the prize money, Plaintiff A needed to pay a tax of NT$62,950 to the Macau Financial Bureau. Plaintiff A followed instructions and wired NT$30,000 to a designated account, which was actually Defendant B's aforementioned post office account. After making the transfer, Plaintiff A sensed something was amiss and reported the matter to the police for handling. Upon entering Defendant B's account, the funds were immediately withdrawn in full. Tracing the account, the police found it belonged to Defendant B and transferred B to the Taipei District Prosecutors Office for investigation.

The prosecutor at the Taipei District Prosecutors Office indicted Defendant B on suspicion of the offense of aiding and abetting fraud under Paragraph 1 of Article 339 of the Criminal Code. The Taipei District Court held that the prosecutor's evidence was insufficient to prove that the defendant possessed the intent to aid and abet fraud, and therefore acquitted Defendant B (Taipei District Court Judgment 96-Yi-80). Dissatisfied, the prosecutor appealed. After reviewing the case, the High Court held that the defendant possessed the intent to aid and abet fraud, thereby revoking the original judgment and rendering a guilty verdict as an accomplice to fraud (Taiwan High Court Judgment 96-Shang-Yi-2641).

It should be clarified that the District Court and the High Court had no divergence in their determination of the facts of this case within the scope described above. Neither judgment found that the reactivation of Defendant B's passbook was performed by Defendant B, nor did either judgment consider the funds deposited by Plaintiff A into Defendant B's account to have been withdrawn by B. In addition, regarding Defendant B's physical and mental state, both courts adopted the report obtained from the assessment commissioned by the original trial court. The assessment report stated: "The defendant began exhibiting psychiatric symptoms six to seven years ago, mainly characterized by personality changes, delusions, and auditory hallucinations. The clinical diagnosis is paranoid schizophrenia. Although the accused offense has no direct relationship with active symptoms such as persecutory delusions and auditory hallucinations, it is closely related to cognitive functional limitations caused by regressive symptoms. This manifests as poor reality testing, making the understanding and evaluation of social contexts susceptible to influence and clearly overly superficial and simplified. The cognitive and judgment abilities required for daily living have been noticeably impaired due to psychiatric illness, manifesting as poor self-care. Therefore, it can be inferred that the defendant's understanding of the nature of the act of handing over the passbook, ATM card, and password to others, as well as the understanding of the subsequent consequences and relative responsibilities and obligations, has reached a level of marked impairment due to the impact of the psychiatric illness." However, the two courts held different views on the legal significance of this assessment result for the adjudication of this case. The District Court used it as supplementary evidence to establish that the defendant lacked the intent to aid,¹ while the High Court used it as a reason for mitigating criminal liability.²

《Legal Issues and Analysis》

This is a case where an actor provided a dummy account, which was utilized by a fraud syndicate, thereby implicating the actor in the crime of fraud. In such cases, two primary legal issues are discussed:

• If such an act involves the crime of fraud, does it constitute a "co-principal" or an "accomplice" to fraud?
• Does an actor who provides a dummy account to an unrecognized third party possess the "intent to aid and abet fraud"?

Between the two issues, the former is a so-called theoretical issue, while the latter is a factual subsumption issue that is common in practice and constitutes the primary controversy of the two judgments in this case.

From the perspective of this article, both of the aforementioned legal issues, including the issue of "co-principal or accomplice," must be clarified through the process of criminal adjudication in this case. The necessity of handling the matter in this manner will be demonstrated below. At the same time, relevant arguments from the two judgments of this case will be introduced and evaluated during the process.

I. Elements for Establishing Fraud

Regardless of the final adjudication result, what is certain is that the basic offense involved in this case is the crime of fraud under Article 339 of the Criminal Code; therefore, the elements for establishing fraud should be the first thing confirmed in discussing this case.

A crime is an unlawful and culpable act. Therefore, the establishment of the crime of fraud, like any other offense, must satisfy the elements at the two levels of unlawfulness and culpability.³ Furthermore, at the level of unlawful elements, because the unlawful evaluation of objective factors and the unlawful evaluation of an actor's subjective factors in criminal law each have their own significance—the setting of objective unlawful elements involves the distinction between completed offenses and attempts, while the setting of subjective unlawful elements involves the distinction between intentional offenses and negligent offenses—the unlawful determination of fraud must also separately discuss its objective and subjective unlawful elements.⁴

The crime of fraud under Paragraphs 1 and 2 of Article 339 of the Criminal Code is an intentional and completed offense. At the level of objective unlawfulness, the composition of this offense must satisfy all of the following elements:

1. The actor commits a fraudulent act.
2. The victim falls into error due to the fraudulent act.
3. The victim delivers an object or other property interest to the actor or a third party based on the aforementioned misunderstanding.⁵
4. Property damage occurs.
5. The actor's generation of the aforementioned interest infringement lacks justification.⁶

Among them, a so-called "fraudulent act" refers to an act of transmitting false information; such an act of transmitting information is not restricted by specific methods and can be either an act or an omission. In a specific case, whether an actor's behavior, such as silence, counts as an act of objectively transmitting information inconsistent with the facts is a matter of how the adjudicator interprets the behavioral clues from factual clues, rather than an issue of the elements themselves. The victim falling into error refers to the victim's imagination of facts and their significance not matching the true situation. Of course, the phrase "the victim falls into error due to the fraudulent act" already indicates that there must be a causal relationship between the actor's fraudulent act and the victim falling into error. Similarly, the fraudulent act must also have a causal relationship with the victim's delivery of an object or property interest.⁷ As for the object or property interest delivered by the victim, it is not necessary for it to be owned by the victim themselves, nor is the delivery target necessarily the actor, because these factors are unrelated to the purpose of the crime of fraud in protecting property interests.

Furthermore, since the purpose of the crime of fraud lies in protecting human property interests, and "property interest" has long not been limited to the form of objects within the civil law system we adopt—in other words, the provisions of Paragraph 2 of Article 339 of the Criminal Code are merely a complete explanation of the legal interests protected by the crime of fraud—there is no reason to view Paragraph 1 and Paragraph 2 of Article 339 as two different offenses. In other words, as long as it is determined that the victim has delivered a property interest, regardless of whether it is an object, this element of legal interest infringement can be satisfied. This point can be learned from the legislative example of Section 263 of the German Criminal Code.⁸ Finally, like other offenses, the unlawful evaluation of fraud is also affected by justification grounds. If, at the objective level, the actor's act of generating property infringement through fraud has justifiable reasons (i.e., grounds for precluding unlawfulness or grounds for precluding illegality), such as self-defense, necessity, permitted risk, etc., then this objective fact will not be the "unlawful" fact required for a completed fraud.⁹

At the subjective unlawful level, the crime of fraud requires the actor to possess "intent" and "intent of unlawful appropriation." That is, the actor must have cognition of the realization of the aforementioned objective unlawful elements and possess the imagination of enabling themselves or a third party to obtain the property interest delivered by the victim. However, the so-called "cognition" does not require "actual knowledge"; as long as one perceives that the realization of objective unlawful elements is possible, it is sufficient, which is based on "conditional intent" (dolus eventualis).¹⁰ Of course, mainstream opinion holds that the "volitional element" (intentio) must also be present here; however, this "volitional element" is also a low-level volition, meaning that as long as the final result of unlawful infringement is deemed acceptable anyway, it counts as volition.¹¹ In a specific case, if an actor perceives that their behavior may realize unlawful infringement and still decides to take that action, then upon interpretation, it should be considered the thought that "in any case, the final result of unlawful infringement is still acceptable," which should be regarded as possessing the "volitional element." This is why a minority view holds that requiring the element of "volitional element" is not wrong, but unnecessary.¹² As for the "intent" within the "intent of unlawful appropriation," it is also sufficient to possess imagination to the extent of "conditional intent."¹³

It needs to be further explained that what the crime of fraud censures is the act of improperly infringing upon others' property interests. Therefore, its "intent" element should also possess the meaning of "improper," so as to be worthy of being called subjective "unlawfulness."¹⁴ Perceiving that one's behavior may infringe upon another's property interests is not equivalent to stemming from an improper psychological state. For example, using fraud to make a counterpart deliver property stolen from oneself cannot be said to be the target of censure for the crime of fraud. Therefore, fraudulent intent should also include cognition of the impropriety of the act, i.e., cognition of "unlawfulness."¹⁵ However, since the crime of fraud also simultaneously requires "intent of unlawful appropriation," and this "unlawfulness" determination is generally handled in the context of "intent of unlawful appropriation,"¹⁶ emphasizing the unlawful element in the "intent" element still seems redundant. Nevertheless, the correct phrasing should be that to constitute the crime of fraud, both the damage to another's property interest through fraud and the intention to claim it as one's own must stem from imagination without justifiable grounds.

Finally, at the culpability element level, the actor must possess the normative avoidability (expectation possibility) to avoid the unlawful act and have no other grounds for precluding culpability in order to constitute the crime of fraud. However, like other crimes, if there are grounds for mitigating culpability, the actor can receive a reduction in sentencing.

II. Analysis of This Case

As mentioned earlier, the core of the criminal adjudication in this case is the relationship between the behavior of Defendant B and the crime of fraud. Therefore, the discussion procedure should follow the established elements of fraud step by step to arrive at a final conclusion, regardless of whether this conclusion turns out to be a principal to fraud, an accomplice to fraud, or entirely innocent.

1. Objective Unlawfulness

In the facts of this case, there is a victim, Plaintiff A, who wired funds from their account to someone else's account. A did so because they believed the statements made by the caller in multiple phone calls they received, claiming that A had won a prize and needed to pay taxes to claim the prize money. Of course, this statement was fabricated by the caller. In other words, the four requirements demanded in the crime of fraud—that the victim falls into error due to the fraudulent act, thereby delivers property interests, and consequently suffers property damage—have been realized, even though the property interest delivered was a claim rather than an object. In addition, the caller clearly had no justifiable grounds; undoubtedly, as the court determined in the judgment, the caller was a member of a so-called fraud syndicate. Therefore, for Defendant B in this case, the remaining question is whether B committed that fraudulent act and caused the subsequent unlawful result? If B did not commit that fraudulent act, it is impossible to constitute a completed fraud here.

In the facts confirmed earlier, Defendant B provided their account and password to others, allowing a third party to use this account as a channel to direct the victim to deliver property and thereby obtain unlawful benefits, but Defendant B did not call Plaintiff A to induce them to wire money. Therefore, obviously, Defendant B did not "personally commit" the fraudulent act.

However, it must be noted that this case involves factual circumstances of multi-party participation (beteiligen oder teilnehmen).¹⁷ In cases where multiple parties are involved in criminal facts, the determination of the scope of a participant's "action" cannot be based solely on their individual actions. How the "action" of a participant should be accounted for must be determined by placing their individually assigned activities into the interactive relationship with other participants for evaluation and interpretation, and only on this basis can it be discussed whether they can be considered to have "(participated in) committing the constituent element act." Based on this thinking, we can say that the boss sitting on a sofa shouting instructions to kill is not merely moving his mouth, but must also have the subordinate's shooting act counted towards him, and we can also say that he "(participated in) committing the constituent element act of the crime of murder" and is a "principal." In fact, the entire "theory of control over the act" is precisely attempting to elucidate this concept.¹⁸

According to the above principles, we cannot simply assert that B did not "participate in committing the constituent element act" merely because Defendant B "simply provided an account" without making scam calls or executing other participating activities. Contrary to this, the court in this case, like the vast majority of fraud judgments concerning the provision of dummy accounts, directly concluded that simply providing an account is merely "participating in acts outside the constituent elements of fraud" and does not constitute participating in the commission of constituent element acts, and therefore does not constitute a (co-)principal to fraud.¹⁹ This assertion is hasty and can be overturned. The Supreme Court, in its Criminal Judgment 97-Tai-Shang-2551, affirmed that an actor who is only responsible for withdrawing funds delivered by victims may also constitute a co-principal to the crime of fraud. The commission of the crime of fraud does not require the objective acquisition of property interests. For an actor who is only responsible for withdrawing money and does not make phone calls or execute other participating acts, the Supreme Court still held that they constitute a (co-)principal to fraud, on the grounds that the actor's withdrawal act is based on the foundation of "knowing that the work they are engaged in belongs to the division of labor of a fraud syndicate."²⁰ By the same token, if Defendant B's act of providing an account is also established on the foundation of "knowing that the work they are engaged in belongs to the division of labor of a fraud syndicate," we cannot say that they absolutely do not constitute a (co-)principal to the crime of fraud. Interestingly, the High Court in this case determined in its judgment that Defendant B "foresaw that providing one's own financial account for use by an unrecognized other would help others commit fraudulent crimes."²¹ In other words, Defendant B was cognizant of their division-of-labor role in the fraudulent activities through providing the account.
Regarding the meaning of "participating in committing the constituent element act," there are two further necessary clarifications. First, since "participating in committing the constituent element act" is an interpretive issue within a context, "committing the constituent element act" here can no longer be narrowly understood as "personally committing." Therefore, the more appropriate phrasing should be "participating in the realization of the objective unlawful constituent elements."²² If an act (of providing an account) is interpreted as "participating in the realization of the objective unlawful constituent elements of the crime of fraud," then the actor is also considered to have participated in the commission of the fraudulent act. Conversely, if the result of interpretation is "did not participate in the realization of the objective unlawful constituent elements of the crime of fraud," then the actor cannot be punished based on the provisions of completed fraud, because having not participated, it cannot be said to be related. Second, the concept of "participation" refers to the interactive relationship between people, which is also a communicative relationship, and the so-called "intersubjective" relationship. Therefore, a "participatory" act cannot completely strip away the actor's subjective factors and be determined solely on objective factors. The aforementioned Supreme Court judgment is a ready-made illustration. In fact, both "co-principal" and "indirect principal" are embodiments of this concept.

At this point, regarding the five objective unlawful elements of the crime of fraud in this case, we can still only confirm the satisfaction of four of them. As for whether Defendant B's act of providing an account can satisfy the element of "exercising fraud"—that is, whether it counts as "participating in the commission of the fraudulent act"—no definitive conclusion can be reached yet. This is because whether B knew the division-of-labor role of their account-providing act in the entire fraudulent activity is sufficient to affect our judgment of the meaning of their act. In other words, whether the objective unlawful elements are fully satisfied here awaits simultaneous determination with the examination results of the subjective unlawful elements.

2. Subjective Unlawfulness

(1) In this case, it is certain that Defendant B knew they were providing an account, ATM card, and password to an unrecognized third party, and also knew that the third party would use the account to do certain things; both court judgments had no dispute over this. The problem is whether this cognitive state simultaneously included cognition to the degree of "conditional intent" regarding: 1. their own participation in the fraudulent act; 2. the victim falling into error due to the fraudulent act; 3. the victim delivering an object or other property interest to themselves or a third party based on the aforementioned misunderstanding; 4. the resulting property damage; 5. the lack of justification in their participation in the aforementioned interest infringement; and 6. the imagination of enabling themselves or a third party to obtain the property interest delivered by the victim.

Regarding these issues, what needs to be clarified first is that what we need to judge is "whether the actor had cognition" of these elements, not "whether they had the ability to cognition." We cannot deduce that an actor "had intent" from the judgment that they "had the ability to cognition." In domestic judgments concerning the criminal liability for fraud regarding dummy accounts in recent years, such statements are frequently seen:

"(Defendant) Yi-mou could foresee that providing the passbook, ATM card, and password of their own account for use by others carried the possibility that others would use them for property crimes, and yet, based on the conditional intent to aid others in committing crimes... mailed the passbook, ATM card, and password... of their own Chang Hwa Commercial Bank... account to a 'Section Chief Kuo' whose name and household registration are unknown, thereby assisting others in engaging in criminal activities using this method."²³

Without the support of further factual foundations, the court directly upgraded its mental impression of the actor's "ability to foresee" to the conclusion of "having intent." Doing so is tantamount to obliterating the boundary between intent and negligence, and also violates the basic concept of "intent."²⁴

Secondly, regarding the issue of whether the actor possessed cognition, while it may not have a definitive true answer, adjudicators cannot verify the true answer either. What adjudicators can and must do is to extrapolate or interpret the cognitive state of the actor based on available factual clues and their own experiential background. Generally speaking, the more complete the adjudicator's grasp of factual clues, the richer the empirical facts provided for comparison, and the more reasonable the logic of inference, the higher the probability of approaching the truth, and vice versa. When factual clues are insufficient, adjudicators have only two choices: first, conduct more detailed factual investigations; second, make a judgment favorable to the defendant in accordance with the principle of in dubio pro reo. This is our working principle for handling the issue of intent determination, and also the criterion for evaluating whether the court's mental impression is reasonable and acceptable.

(2) According to the aforementioned confirmed facts, Defendant B's act of providing an account, ATM card, and password to others in this case was done after reading a classified ad in a newspaper offering to help people process loans using post office passbooks in exchange for cash. Therefore, Defendant B's cognition of the purpose of the account may have been limited solely to making it convenient for others to process loans. In fact, the defendant also argued this to the court during the trial of this case. If the defendant was not lying, then we must say that Defendant B did not possess the unlawful imagination required by the crime of fraud at the time of the act, and lacked fraudulent intent and intent of unlawful appropriation. The District Court's judgment accepted the defendant's statement. However, the High Court did not accept it. The High Court held that the defendant "still had cognition regarding the fact that handing over items such as the post office passbook, financial card, and password to an unrecognized other might be used by that other person for the purpose of fraud."

The High Court's reasons for rejecting the defendant's defense were:

1. The defendant's purpose in handing over items such as the passbook and financial card to an unrecognized other was obviously intended to exchange them for money.
2. The method of processing loans simply by using a post office passbook does not conform to daily life experience.
3. The defendant's failure to report to the police or engage in any rescue behavior upon discovering they were scammed runs contrary to common sense.
4. The post office account was dedicated to receiving living allowances for persons with disabilities; the defendant leaving their subsidy funds to be withdrawn by anyone without paying attention clearly violates empirical rules.
5. When using the voice service, the defendant only reported the passbook lost and did not report the financial card lost, which runs contrary to common sense.²⁵

The problem, however, is what exactly can be deduced from these reasons given by the High Court? First, the court's first reason implies that the defendant had no good intentions of helping others and was purely greedy for money. This is a personality evaluation, implying that the defendant is inclined to do bad things. The second reason implies the court's view that nobody could possibly believe that providing a passbook could help people get loans as stated in the ad, and therefore the defendant was "feigning ignorance" and actually knew the account had other purposes. Since the defendant was inclined to do bad things, the defendant naturally might have "feigned ignorance" and probably also envisioned that the actual purpose of the account was not benign. Reasons 3 through 5 imply the court's determination that the defendant intentionally provided the account for third-party use and took risks. This indicates that the defendant was willing to accommodate others. A person willing to accommodate others by letting their account be used for improper purposes should be considered to have imagined the underlying fraudulent activities to the degree of "conditional intent."

What we see in the High Court's approach here is that it first framed the defendant as a bad person driven by greed, and then systematically eliminated all possibilities of the actor's ignorance, carelessness, or lack of thought, finally arriving at a conclusion. In other words, it is almost a labeling-style adjudication. In fact, after laying out the aforementioned reasons in the judgment, the concluding sentence delivered by the court was unexpectedly: **"It should be determined that the defendant's purpose in handing over items such as the passbook and financial card to those two adult males was to exchange them for money."** Reiterating that the defendant was a greedy person.²⁶ However, the logical foundation of such a deduction is obviously very weak. This is because doing something out of greed is not equivalent to doing an unlawful act. Intentionally providing an account for people to use is also not equivalent to intending to let people use it for unlawful purposes. Furthermore, even if the defendant were truly feigning ignorance, it still cannot be equated with having imagination regarding the subsequent "unlawful" use.

Not only is the logical foundation weak, but the High Court's repeated assertions here—such as "inconsistent with daily life experience," "contrary to common sense," and "violates empirical rules"—are also contrary to real life experience. In fact, for a person with insufficient vigilance who is solely focused on waiting for someone else to pay, even if they do not receive the money, they might continue waiting and not necessarily report it to the police immediately. It is also heard of in society from time to time that someone can easily trust strangers and be foolish enough to hand over important accounts to others. Moreover, an ordinary person handling telephone loss-reporting procedures might also get confused about whether to separately report the passbook and the financial card as lost; such a situation is not strange at all. And a person to whom all the above situations might happen being naive enough to believe the statement of "post office accounts helping with loans" in a classified ad cannot be said to be anything beyond imagination.

At this point, none of the reasons put forward by the High Court in this case can deduce that Defendant B possessed fraudulent intent.

(3) Viewed from the confirmed facts of this case, the more likely situation regarding Defendant B's subjective cognition at the time of the act is as claimed by the defendant: someone needed a post office account to process a loan, and Defendant B was willing to provide it in exchange for a reward. The remaining factual clues, as with the High Court's failed argumentation in this case, are insufficient to support the possibility that Defendant B had other unlawful imaginations. On the contrary, the ignorance, naivety, and imprudence displayed by Defendant B's trusting act can also explain the consistency in their behaviors, such as delivering the item without collecting payment under any guarantee, failing to notice the importance of the account, failing to report to the police afterward, and performing incomplete loss-reporting procedures. Furthermore, the assessment report on the defendant's physical and mental state produced by the assessor in this case stated that Defendant B's "cognitive and judgment abilities required for daily living have been noticeably impaired due to psychiatric illness, manifesting as poor self-care. Therefore, it can be inferred that the defendant's understanding of the nature of the act of handing over the passbook, ATM card, and password to others, as well as the understanding of the subsequent consequences and relative responsibilities and obligations, has reached a level of marked impairment due to the impact of the psychiatric illness," which provided a pathological basis for the view that the defendant provided the account to others out of gullibility. The District Court's judgment in this case shares the same view as this article.²⁷

Therefore, the conclusion is that Defendant B in this case did not possess recognition reaching the degree of "conditional intent" regarding the third party potentially using their account to conduct fraudulent activities, meaning they lacked fraudulent intent. At the same time, Defendant B's act of providing the account does not belong to the act of "participating in the commission of the fraudulent act." Neither the objective unlawful constituent elements nor the subjective unlawful constituent elements can be satisfied, and Defendant B does not constitute the crime of fraud.²⁸

3. Culpability

Since neither the objective unlawful constituent elements nor the subjective unlawful constituent elements are satisfied, it is certain that Defendant B does not constitute the crime of fraud, and theoretically, the discussion of culpability is no longer necessary. However, it can be incidentally mentioned that if considered solely from the level of culpability, the assessment report in this case provided reasons for mitigating criminal liability, a point not overlooked by the High Court's judgment.

4. The Issue of Accomplice

(1) The preceding analysis of unlawful elements negated the establishment of the crime of fraud in this case, which in fact also equals negating the establishment of being an accomplice to fraud.

According to mainstream opinion, an accomplice is a participatory act (Teilnahme) that promotes (fördern) the realization of criminal constituent elements (Tatbestandsverwirklichung), or an act that provides assistance (hilfeleisten) to the realization of criminal constituent elements.²⁹ Clearly, the establishment of an accomplice requires, objectively, a factual background of the realization of a specific criminal constituent element, while the actor must simultaneously perform an act that has the significance of "promoting" or "assisting" within this background fact. Subjectively, the actor must have cognition of the aforementioned objective unlawful elements. Therefore, for the establishment of an accomplice to fraud, objectively there must also be: 1. a fraudulent act; 2. the victim thereby falling into error; 3. thereby delivering property interests; while 4. property damage occurs; 5. this infringement state lacks justification grounds; 6. someone has unlawful intent regarding the interest delivered by the victim; and then 7. there must be an actor's act that exerts a "promoting" or "assisting" effect on the occurrence of the aforementioned state. The so-called "promoting" or "assisting" is actually a relational significance of the actor's individual actions to the entire event context, in other words, a kind of "participatory" relationship, a "division-of-labor role."³⁰ Again, the "participation" here is the same as the situation of a "principal," remaining a behavioral meaning under an interactive relationship rather than a mere objective fact. Next, subjectively, an accomplice to fraud must possess cognition of the seven elements, including the fraudulent act and their own "promoting" (aiding) act; among them, having cognition of element 6 actually equals having cognition of "enabling a third party to obtain the interest delivered by the victim," which equals having "intent of unlawful appropriation for a third party."

The above analysis not only follows the definition of mainstream opinion, but also embodies the "accessoriness" structure stated by mainstream opinion, and conforms to the definitions of "aiding act" and "aiding intent." However, we find that the unlawful constituent elements to be examined in an accomplice to fraud are indistinguishable from those of a principal to fraud. This is because as long as that seemingly extra "promoting" or "assisting" effect exists, it actually equates to the actor participating in the commission of the fraudulent act.

It is just that in this factual context, since we have already determined earlier that Defendant B did not cognize that behind their act of providing the account lay the existence of unlawful facts such as exercising fraud to make people deliver property interests, they naturally did not cognize that their act was "aiding" the "realization of the unlawful constituent elements of the crime of fraud," and lacked "intent to aid and abet fraud."³¹ At the same time, since Defendant B did not cognize that the act of providing the account played a division-of-labor role in the fraudulent activity, their act cannot be called an "aiding" act either.³²

The conclusion is that both the objective and subjective unlawful constituent elements of an accomplice to fraud are not satisfied in this case, and Defendant B does not constitute an accomplice to fraud.

(2) We can imagine that proponents of mainstream opinion would feel surprised by the result of such an analysis. This is understandable. Because mainstream opinion has long been spinning around verbal distinctions ("aiding" is not "conspiratorial intent, division of labor"; an "accomplice" realizes a crime for "others," while a "principal" realizes a crime for "themselves"; an "accomplice" merely "promotes" the realization of a crime, while a "principal" "controls" the realization of a crime), rarely analyzing the logic behind their thoughts seriously, thus intuitively believing that even if someone does not constitute a principal, they may still constitute an accomplice. However, precisely because they fail to see through this logic, mainstream opinion continually faces trouble in specific cases when repeatedly grappling with how to distinguish between accomplices and co-principals, and how to distinguish between accomplices and indirect principals, a situation that persists to this day. The analysis in this case happens to be an opportunity to reveal that accomplices and principals have fundamentally no difference in their unlawful structures.³³

Of course, the fact that accomplices and principals have no difference in their unlawful structures does not seem to harmonize with the statutory provision where accomplices may have their punishments mitigated (Paragraph 2 of Article 30 of the Criminal Code). However, it is not necessarily truly contradictory. In fact, this preferential provision may still find its foundation at the level of culpability. That is, from the perspective of lower normative avoidability or penal necessity, giving lighter punishments to participants with smaller division-of-labor roles and lower status in collective crimes is also a reasonable principle. Therefore, we can define an "accomplice" as a principal with mitigated culpability.³⁴

Regardless, Defendant B in this case does not constitute an accomplice to fraud, and the Taipei District Court's judgment is correct in its conclusion, though its argumentative framework remains bound by the traditional framework of complicity theory.

《Case Answer》

Theoretically, if an act is considered to constitute an accomplice to fraud, it also constitutes a principal to fraud, because an accomplice is merely a principal with mitigated culpability. As for the case itself, this article's conclusion is that Defendant B does not possess fraudulent intent, does not constitute the crime of fraud, and is neither a principal nor an accomplice. The reasons for these two points have been clearly accounted for above. In fact, for this article, the following points are even more worthy of discussion.

1. Over the past three to four years, dummy accounts have become the focus of government attention as the best tools for economic criminals to conceal their offenses. Official authorities and criminal policy experts universally believe that eliminating dummy accounts is the best means to effectively curb economic crimes. Under this trend, a massive number of fraud judgments targeting providers of dummy accounts have been issued. Clearly, the judiciary's coordination with this policy direction is excellent. Not only that, the courts also believe they hold great tools to respond to this policy requirement, one of which is the crime of aiding and abetting fraud.

In such cases, whether aiding and abetting fraud is established almost entirely hinges on the determination of "intent to aid and abet." Judging by the high conviction rate, it is very easy for the courts to find that individuals who provide dummy accounts possess the "intent to aid and abet fraud." However, when we carefully examine the courts' approach, it cannot but cause concern. A large number of judgments show that the courts hold a fundamental attitude: since the media has reported so much and the government has propagated for so long about the problem of fraud syndicates buying dummy accounts to carry out fraudulent activities, if you are a law-abiding citizen, you should know that accounts cannot be casually given to others for use. Based on this presupposition, when encountering cases, the courts frequently presume that the defendant is not a law-abiding citizen and presume that they likely knew the object to whom they delivered the account was a fraud syndicate.³⁵ Theoretically, courts that should have encountered people and events of all stripes frequently fail to see the individual differences in people's minds and wits, and fail to see the diversity of living facts. Only a few judgments, such as High Court Judgment 92-Shang-Yi-3200 and Taoyuan District Court Judgment 92-Yi-39, remember that "the problem of dummy accounts is a widespread fact in our country, and their uses are numerous, such as withdrawing funds, evading taxes, trading financial products or other legal and illegal financial operations, money laundering, fraud, running Mark Six lotteries, underground lending, and even kidnapping for ransom, among various legal and illegal uses."³⁶ Most of the time, the courts do not stop to think: since there are so many uses, how can the actor presumptuously know that the use stated by others is false?

Precisely immersed in this presupposition, we see that the High Court in this judgment completely failed to consider the possibility that Defendant B was a naive, gullible, and foolish person from start to finish. As a result, it produced a guilty argument whose logic cannot withstand analysis, falling far short of the performance of the District Court's judgment. This High Court judgment can still be considered a relatively obscure example. The aforementioned large number of court judgments directly emerging from "being able to foresee" to deduce "having intent" have even more directly and fully exposed the biased mentality of the courts. The situation is that the courts actively cooperate with the policy of cracking down on dummy accounts, holding a presumption of guilt, and the result is the sacrifice of judicial professionalism.

2. Aside from the above commentary, related to the determination of intent and worth raising here is that in the process of criminal adjudication under criminal law, the importance of subsumption is by no means inferior to the analysis of criminal elements. Subsumption is a process of interpreting living facts; therefore, what is needed is an ability to interpret life. The issue of determining "intent" or "subjective unlawfulness" is precisely the most important occasion testing this ability of legal professionals. However, legal education in our schools has historically neglected the cultivation of this ability. We often say "whether intent is constituted is determined according to the facts of individual cases," while simultaneously explicitly writing the words "intent" or "foreseeability" into case facts. We are rarely truly trained to handle the issue of "determining" intent, or the issue of interpreting life. Legal professionals who wield state judicial power also hold the ultimate power to interpret facts; the version of the story they tell is sufficient to determine the fate of the parties involved. Dummy account cases are precisely a vivid example. In recent years, the courts have developed a storytelling model for dummy account cases: regardless of the actual experience encountered by the defendant, it can be reduced to "the defendant was able to foresee (or knew with certainty) that delivering the account to an unrecognized third party could possibly be utilized for property crimes, and yet still acted based on aiding intent and so on." Prosecutors also utilize this model to heavily prosecute account owners, and then the government loudly propagates (to the "ignorant" populace) "do not casually hand over accounts to others, or you are very likely to bear criminal liability." What is worrisome is whether students who read these "practical views" in school have the ability to resist the authority of this storytelling? When they acquire power in the future, will they also tell other people's stories in this manner?

3. Finally, the theoretical issue most frequently discussed in legal problems concerning dummy accounts is "accomplice or co-principal." However, when courts or legal doctrines handle this issue, they often forget the most basic methods of crime analysis. A frequently occurring situation is that adjudicators jump straight to the discussion of accomplices based on fragmentary facts before stepping through step-by-step examinations of whether the crime of fraud can be constituted, or they discuss A-view and B-view without examining a single shred of facts. Even in occasions touching upon accomplices, they rarely truly analyze the elements of "an accomplice to a certain crime" and conduct subsumption step by step. In fact, no matter what theory is adopted, the method of criminal examination does not change, and any theory that can withstand scrutiny can also obtain true verification from basic examination work. Through this prominent issue, emphasizing the importance of basic methods is also one of the purposes of writing this article.

＊Originally published in Taiwan Law Review, May 2009

---