Decriminalization of Minor Offenses as a Method for Judicial Reduction: Defamation, Adultery, and Negligent Injury

Recently, Group 5 of the National Conference on Judicial Reform resolved that the offense of defamation should be decriminalized, which is a step in the right direction. Judicial reduction is one of the key tasks of judicial reform, because inefficient judicial overwork is a major factor impairing judicial quality and judicial personnel. The decriminalization of minor offenses is an important method for criminal judicial reduction. Therefore, although it involves substantive law, it should still be included in the agenda of the National Conference on Judicial Reform.

Offense of Defamation

The punitive scope of the offense of defamation extends to countless situations involving negative language, thereby producing numerous side effects. These include: (1) turning the majority of society into offenders or potential offenders, including, of course, those who applaud when others are convicted; (2) subjecting defamation—punishable without distinction as to severity—to the criminal law, forcing judicial personnel to frequently handle trivial interpersonal frictions; (3) that this judicial labor rarely has a preventive function, because the use of negative language has always been a universal human need; (4) a high dark figure of crime, namely the problem of highly selective enforcement; and (5) a high degree of conflict with freedom of speech.

Furthermore, in criminal proceedings, defamation cases frequently clash with the principle that "the prosecutor bears the burden of proof"; the principles of "fair comment" and "truth defense" involve a high degree of uncertainty in individual case applications, and so forth. These characteristics make defamation disputes, which may involve actual harm, more suitable for civil proceedings possessing the nature of ex-post arbitration. In summary, deploying massive criminal judicial resources for such a problematic minor offense indeed creates inefficient judicial overwork.

However, regarding the goal of judicial reduction, apart from the offense of defamation, offenses that need to be decriminalized include, at the very least, the "offense of adultery" and the "offense of ordinary negligent injury."

Offense of Adultery

The offense of adultery shares similar circumstances with the offense of defamation. These include: an extremely high dark figure of crime, the failure of criminal punishment to achieve its protective purpose, and a lack of preventive function, while judicial personnel are forced to intervene in private emotional disputes. Although many people yearn for state law to penalize those who betray marital fidelity, unless we return to an extremely closed society devoid of personal liberty, criminal penalties are virtually impossible to have a normative effect on how people develop emotional and romantic relationships. The reality is that in a free society, acts of adultery occur all the time; they will not decrease due to the existence of criminal punishment, but will only be concealed as much as possible.

From the perspective of the "betrayed party," the offense of adultery is a means to punish the betrayer. However, from the perspective of the state, while it is certainly necessary to handle the facts of adultery based on divorce litigation following the breakdown of a marriage, throwing adulterers into prison neither protects the marriage nor holds much social significance. Moreover, as feminist activists have pointed out, the offense of adultery often becomes a retaliatory tool used solely to punish female third parties. Under such circumstances, because of the existence of the offense of adultery, prosecutors and judges invest their efforts in examining the sexual activities of the parties involved, intervening in the details of people's private bedrooms, and even entangling themselves in emotional relationships where right and wrong are difficult to distinguish—becoming a consumption of energy with no social contribution.

Offense of Ordinary Negligent Injury

What this article wishes to specifically discuss is the "offense of ordinary negligent injury." "Ordinary negligence" here is relative to "gross negligence" (rather than "professional negligence"). We need to understand that although the determination of "ordinary negligence" in criminal cases is stricter than in civil cases, its threshold for establishment is actually quite low. In plain terms, a mere lapse in people's daily lives is likely to constitute ordinary negligence under the Criminal Code. Since most people can hardly guarantee that they will not cause injury to others due to a single oversight in their lifetime, the "offense of ordinary negligent injury," much like the offense of defamation, exposes a very large proportion of society to the risk of becoming criminals every day: one only needs to think of daily traffic behaviors and various high-risk occupational activities to realize this.

When an incident of ordinary negligent injury occurs, the meaningful legal remedy for the injured party is actually the compensation for damages. Sentencing the other party to prison is not only meaningless to the victim, but also holds little crime-prevention significance for the state; it merely increases the number of citizens with criminal records. Because, as mentioned earlier, lapses in daily life are not so easily avoided. As for the perpetrator of ordinary negligent injury, criminal punishment constitutes a criminal record for life. Because of a single oversight, they must pay the price of a lifelong criminal stigma, as well as encountering obstacles in future job hunting, traveling abroad, and other social interactions. This is truly an unbearable burden.

In practice, prosecutors and courts are well aware that invoking criminal punishment for such cases and saddling the defendant with a criminal record holds little meaning; therefore, they will certainly do their utmost to encourage reconciliation between the two parties. However, the career threat posed by criminal punishment to the defendant often becomes an incentive for the victim to "demand higher compensation." Once compensation is inflated, the possibility of the two parties reaching an agreement through reconciliation decreases instead, or the time required to resolve the dispute is prolonged. As a result, for both the parties involved and the state, this is a double consumption of labor, spirit, time, and life—which is quite inefficient.

Medical practitioners feel the threat of the offense of ordinary negligent injury most profoundly. The severity of this problem is also perceived by the general public, and has even led to consequences such as the "exodus of surgeons." However, the argument for the decriminalization of medical negligence has consistently failed to pass muster against legal circles, namely: since ordinary people also engage in various risky behaviors every day, why should medical personnel enjoy exclusive immunity?

In fact, the difficulty in resolving the issue of medical negligence decriminalization lies neither in dinosaur legal professionals nor in medical privileges, but in the fact that no one has yet realized that the existence of the "offense of ordinary negligent injury" is the root of the problem. Faced with this threat of criminal punishment, medical personnel adopt the strategy of occupational relocation, thus arousing societal resonance. Meanwhile, ordinary people facing the same threat of criminal punishment have no choice but to endure it in silence because they have no alternatives. In reality, the "offense of ordinary negligent injury" causes pointless resource consumption and deprivation of life, and this applies equally to medical professionals and ordinary people alike.

Decriminalizing the "offense of ordinary negligent injury" institutionally, allowing the parties and the judiciary to focus on "how damages are compensated," can not only substantially alleviate the threat to the medical profession, but also generally alleviate the pointless consumption of personal, social, occupational, judicial, and state resources. Therefore, the "decriminalization of the offense of ordinary negligent injury" is a solution that judicial reform should consider.

It must be emphasized here that the decriminalization of "ordinary negligence" is not an argument for the total decriminalization of negligence. It merely refers to decriminalizing "ordinary negligence" and restricting criminal punishment to cases of "gross negligence" and "intent." At the same time, it does not argue that ordinary negligence carries "no legal responsibility whatsoever," but rather asserts that the focus should be placed on handling it through civil liability.

Conclusion

When all is said and done, on the one hand, the state truly cannot afford to actually make the majority of its citizens criminals; on the other hand, investing precious judicial manpower in minor offenses that possess little social function yet harbor numerous side effects is a gratuitous sacrifice of judicial quality. Since massive social forces have now been mobilized to carry out comprehensive judicial reform, and since judicial personnel are continually crying out to improve the phenomenon of overwork, this opportunity should truly be seized to review unnecessary criminal provisions. Dropping these minor offenses will not create a legal vacuum; it will only help operationalize judicial efficiency and enhance quality.