MOJ's Hit-and-Run Amendment Turns the Law Back Twenty Years

Did you know that the Legislative Yuan is about to review amendments to the hit-and-run offense-and that the Ministry of Justice's proposal could punish a driver who did not know that a traffic accident had occurred and did not realize anyone had been injured?

Most people hearing that would probably think something is wrong: wouldn't that make the driver extraordinarily unlucky? In fact, legal practitioners and scholars rejected this idea long ago. Nearly twenty years earlier, Supreme Court Criminal Judgment 91-Tai-Shang-1124 made clear that although the accident causing death or injury need not be intentional, the driver must know that the accident caused death or injury and nevertheless leave the scene before the offense can be established. Punishing a driver who does not know an accident occurred or anyone was hurt would seriously violate the culpability principle-the rule that there can be no punishment without culpability-and thereby infringe human rights.

Yet the Ministry of Justice's legislative explanation says that "causing injury," "causing serious injury," and "causing death" are objective conditions of punishment. On that theory, a driver who leaves without knowing an accident occurred or anyone was injured-and therefore has no subjective intent to flee from an injury accident-could still be convicted of hit-and-run. That interpretation turns the law back at least twenty years. It is a baffling trip backward in time.

The amendment became necessary because, on May 31, 2019, Judicial Yuan Interpretation No. 777 held part of Criminal Code Article 185-4 unconstitutional. The provision then stated: "A driver of a motor vehicle who causes an accident resulting in death or injury and flees shall be sentenced to imprisonment for not less than one year but not more than seven years." Interpretation No. 777 found the provision insufficiently clear because its text did not tell drivers that even if they bore no responsibility whatsoever for causing the accident, leaving the scene after the other person was injured could still trigger the hit-and-run offense. The uniform penalty of one to seven years' imprisonment, regardless of the seriousness of the circumstances, also violated the constitutional requirement of proportionality between crime and punishment. In practice, a collision may cause only minor abrasions; the parties may later settle; and the injured person may even decline to press a negligent-injury complaint-yet the driver can still face a minimum sentence of one year's imprisonment for leaving the scene.

Because of these defects, the Grand Justices gave the government two years to amend the law by May 31. The Ministry of Justice nevertheless waited until April 27 to send its proposal to the Legislative Yuan. More remarkably, over half of the explanatory material consisted of the Judicial Yuan's extensive objections. The Judicial Yuan itself plainly had serious concerns about how judges would apply the Ministry's proposal if enacted.

The Ministry not only failed to take the constitutional deadline seriously; it also failed to engage with the direction given by Interpretation No. 777. The Interpretation expressly said lawmakers should identify the legal interest to be protected and define the scope of affirmative duties arising after an accident. As Grand Justice Hsu Tsung-Li explained in his concurring opinion, the law should specify those duties concretely and clearly rather than assume people will "use their imagination" to play the role of a "good driver"-an approach grounded in legal moralism rather than the constitutional principle of the rule of law. Yet the Ministry's draft largely changed "causes an accident" to "a traffic accident occurs" and stopped there. Simply prohibiting a driver from "fleeing" does not encourage or require the driver to summon help. By contrast, proposals from the New Power Party and JRF emphasize confirming the driver's identity and calling for emergency assistance. The Legislative Yuan should debate those alternatives seriously.

The Legislative Yuan has scheduled review in an effort to meet the amendment deadline, but the bill before it is poorly drafted. Rushing the Ministry of Justice's version through could simply create another disaster. Lawmakers should thoroughly examine its defects, consider the proposals of civil-society groups and scholars, identify carefully the legal interest the hit-and-run offense is meant to protect, and enact a law that genuinely safeguards life and road safety.

※ This article was published by ETtoday on May 18, 2021