Amendments to Close Loopholes for Fugitives! Code of Criminal Procedure Passes Third Reading

The draft amendments to the Code of Criminal Procedure strengthening anti-flight provisions passed the third reading in the Legislative Yuan on July 3, 2019. Previously, cases occurred where suspects whose detention had ceased by posting bail—intended as a guarantee against flight—still absconded during the cessation period. For instance, the recent case in which Ch'en Wei-chih, Vice Chairman of the Ch'ing-Fu Shipbuilding case, jumped bail and fled caused widespread public distrust in the judiciary and severely damaged judicial credibility. The core focus of this amendment is to strengthen our country's anti-flight mechanisms across the investigation, trial, and execution stages to prevent further cases of absconding. The key points of the amendments are as follows:

1. Article 116-2 of the Code of Criminal Procedure — Addition of Alternative Measures to Detention

   Pursuant to Article 110 of the Code of Criminal Procedure, a defendant in detention may at any time apply for the cessation of detention by posting bail. However, past cases frequently involved defendants absconding during the cessation period to evade legal sanctions. To address this issue, the current amendment introduces alternative measures to detention that courts or prosecutors may utilize to prevent defendants from fleeing. When the court deems it necessary, it may, within a reasonable scope and for a specified period, require the defendant to: undergo technological surveillance (e.g., electronic shackles), surrender passports and travel documents, refrain from leaving their residence or a designated area without the consent of the court or prosecutor, or refrain from disposing of specific assets (e.g., prohibiting the transfer of the defendant's real estate registration to others, or withdrawing money or making transfers). Through these methods, the possibility of a defendant absconding is reduced.

   JRF Commentary

   Regarding the alternative measure to detention prohibiting departure from a residence or a designated area, the new law stipulates that the decision is to be made by the court or prosecutor rather than necessarily adjudicated by the court through statutory procedures, and mutatis mutandis applies provisions governing detention warrants, raising constitutional concerns regarding the protection of personal liberty. Furthermore, the restriction on leaving the residence or designated area fails to list medical treatment, education, or employment as exceptions. It does not balance the defendant's right to work freely, attend school, or seek medical care, lacking operational flexibility—a regrettable omission in this amendment.

2. Article 456 of the Code of Criminal Procedure — Execution Permitted Before Case Files Are Transmitted to the Prosecutor

   Under the old law, after a judge rendered a definitive guilty verdict, the defendant was generally not taken into custody immediately. Instead, the prosecutor would only notify the defendant to serve their sentence after the court transmitted the written judgment and case files to the prosecutor, providing an opportunity for the defendant to escape. To improve this situation, the new law adds provisions allowing prosecutors to notify defendants earlier to serve their sentences. Following a definitive judgment, if the prosecutor deems it possible that the defendant might abscond, they may require the defendant to serve the sentence earlier, without waiting for the case files to be transmitted to the prosecutor before execution.

3. Article 469 of the Code of Criminal Procedure — Stricter Restrictions on Summary Apprehension

   Apprehension refers to the temporary and forcible deprivation of personal liberty, requiring the person to be apprehended to report to a specific location for questioning by a prosecutor. The subjects of apprehension include not only criminal suspects and defendants as parties, but witnesses as well. Warrants of apprehension must be prepared in duplicate; cases under investigation are signed and issued by prosecutors, while cases under trial are signed and issued by presiding judges or assigned judges, and executed by judicial police. When executing an apprehension, one copy must be given to the person apprehended so they know the reason for their temporary loss of liberty.

   Under the old law, when a judge rendered a definitive guilty verdict and a prosecutor required a defendant to report to the district prosecutors office to execute a criminal penalty, pursuant to Article 76 of the Code of Criminal Procedure—except for offenses punishable by the death penalty, life imprisonment, or imprisonment with a minimum principal punishment of five years or more, where the defendant could be apprehended directly without prior summons (the procedure of dispatching a notice to the defendant beforehand), legally termed "summary apprehension"—all other cases required the defendant to repeatedly fail to appear before apprehension could occur. However, administrative operations required a certain amount of time at each stage, during which defendants often vanished completely. To resolve this problem, the new law lowers the threshold: when a defendant is sentenced to imprisonment of two years or more and there is a possibility of flight, the prosecutor may directly apprehend and take the defendant into custody without issuing a summons, which is stricter compared to the old law.