Post-Match Report | Whether Taiwan's Money Laundering Control Act Should Add the Offense of Handing Over Mule Accounts | Debate and Symposium

Post-Match Report

First was the constructive speech by the affirmative team's first speaker. Starting from the background of Taiwan's developed international trade and frequent international financial flows, the affirmative pointed out that establishing a high-quality financial order helps combat domestic crime, deters illicit financial flows derived from crime, and contributes to the country's overall economic and trade development as well as international trust. Next, the affirmative explained the operational patterns of money laundering crimes and how judicial practice evaluates them. The most common type of crime utilizing mule accounts is telecommunications fraud. Fraud rings collect mule accounts and recruit money couriers; once victims wire money, they immediately instruct couriers to withdraw, transfer, or hand over the proceeds of crime from the mule accounts in person, thereby achieving the effect of cutting off the financial trail. Supreme Court Criminal Grand Chamber Ruling 108 Tai-Shang-Da-3101 does not treat the handing over of a dummy account as a principal offense of ordinary money laundering. However, if the perpetrator subjectively recognizes that the account may be used to receive and withdraw criminal proceeds and still provides it with the intent to aid, they should be punished as an accomplice to ordinary money laundering.

However, judicial practice often faces difficulties in determining whether a criminal suspect has subjective criminal intent, and tends to adjudicate based on the court's subjective view of general social experience, arbitrarily determining intent through boilerplate reasoning, which creates loopholes in both criminal prosecution and human rights protection. Therefore, adopting the Ministry of Justice's draft amendment, the affirmative argued that for any perpetrator who hands over a financial account to another without justifiable cause—regardless of whether they subjectively recognized and provided the account with aiding intent—as long as the account is ultimately used for money laundering, the perpetrator should be sentenced to imprisonment for not more than three years. In this way, prosecutors and courts no longer need to focus on judging the perpetrator's subjective criminal intent, but instead examine whether the defendant's reason for handing over the account matches the objective evidence. Meanwhile, due to the immaturity of legal education in Taiwan, many citizens still do not understand the consequences of handing over a dummy account. Explicitly regulating and punishing this behavior under the Money Laundering Control Act is more conducive to advocating that mule accounts should not be handed over, thereby reducing related criminal behavior.

Next, the negative team's second speaker cross-examined the affirmative team's first speaker. The negative first confirmed the benefits advocated by the affirmative, which manifest in the current situation where some people who should be punished escape punishment, while others who should not be punished are penalized. They further inquired about the scenarios where punishment fails. The affirmative believed there are two scenarios: first, those with oblique intent who escape punishment due to insufficient evidence; second, those without subjective criminal intent who, according to the affirmative, should still be punished for handing over accounts to fraud rings for criminal use. Through this, the negative's cross-examination established that the group "escaping punishment" discussed by the affirmative actually accounts for only two percent of statistical data, since ninety-eight percent are found guilty, thereby narrowing the affirmative's claimed benefits.

Continuing the affirmative's argument regarding the difficulty of determining subjective criminal intent, the negative asked why, as an accomplice, there is no difficulty in determining intent in other general accomplice cases, yet it is particularly difficult in money laundering prevention. Finally, the negative confirmed that under the affirmative's legislation, a person may be punished without possessing subjective awareness—a form of legislation based on objective conditions of punishment. Having established this institutional foundation, the negative then asked whether the act of handing over a dummy account itself possesses a basis for culpability. The affirmative maintained it does possess such a basis because the act has undermined trust in the financial order. The negative countered that the affirmative must concretely explain why this act creates a risk before it can be punished.

After listening to the affirmative's position, the negative team's first speaker delivered their constructive speech. The negative began by cutting into the legislative omissions of the affirmative's proposal. First is the problem with the statutory text, pointing out that the elements of "without justifiable cause" and "without good reason" lack clear judgment standards, and the courts' operational results are often inconsistent. Second, when defining whether it is an objective element of the offense or an objective condition of punishment, opinions diverge greatly—much like the "causing death or injury" element in hit-and-run under the Criminal Code, or the "breath alcohol concentration reaching 0.25" element under Article 185-3 of the Criminal Code. If judicial practice still treats this as an objective element of the offense, the problem raised by the affirmative—that subjective elements are currently difficult to determine—remains unresolved. If judicial practice treats it as an objective condition of punishment, it will cause perpetrators to take chances when handing over accounts; if the account is not used for criminal purposes, simply handing it over will not be punished, and the investigative stage must also wait for the money laundering result to occur before investigation can begin, which would likewise hinder the affirmative's ability to combat crime.

After explaining the omissions in the affirmative's legislation, the negative proceeded to explain the reasons for opposing the punishment of handing over mule accounts. First, handing over an account to another does not cause direct actual harm; punishing this act is nothing more than legislation criminalizing abstract danger. Therefore, the affirmative has the obligation to prove why simply handing over an account to another is a punishable act. If an act that does not actually infringe upon legal interests is to be included for punishment, it must also be proven that there is a high degree of correlation between this act and the result of actual harm. Currently, there are many reasons for handing over accounts: transfers between friends and family, entrusting others to keep and use accounts when facing credit issues, or currently, small and medium-sized enterprises mixing personal and company accounts in accounting due to simple sole-proprietorship or equity structures, and even more cases where accounts are handed to others out of a desire to help. These do not necessarily generate subsequent criminal actual harm.

Finally, the negative representative reminded that the Criminal Code is the most severe punitive measure infringing upon people's lives and physical liberty. Without the cooperation of any administrative regulatory measures—without considering levying account usage fees for idle accounts or strictly reviewing the threshold for opening accounts—legislators rashly employing criminal punishment violates the principle of ultima ratio (last resort) of criminal law.

In the next segment, the affirmative team's first speaker cross-examined the negative team's first speaker. First, the affirmative established that the negative's position is grounded in the belief that this provision is inherently incapable of being formulated with clarity and has achieved no effective resolution, and confirmed what harms the negative intends to argue in this match. The negative argued that over-anticipatory punishment is the harm. Next, the affirmative pointed out through a series of KYC (Know Your Customer) operations performed during bank account opening—such as verifying whether one is the actual owner of the account and the purpose of use—that the current system is designed to prevent the financial order and trust from being undermined. The negative countered that current KYC operations are neither mandatory nor is the execution process audited by banks. The affirmative held a different understanding, believing that the Money Laundering Control Act stipulates financial institutions have an obligation to do so, leaving data to be presented later. Extending from this background, the affirmative pointed out that current KYC operations are tantamount to affirming that the nominal holder of the account should be the user. The negative responded that the user and the nominal holder can be separate. The affirmative separated this situation as proxy use and authorized use, arguing that in principle, the nominal holder and the user should still be deemed the same person. Finally, regarding the attack and defense over the difficulty in clarifying objective conditions of punishment and objective elements of the offense raised by the negative, the affirmative asked whether it is possible to narrow the scope of judicial interpretation through legislative intent, Grand Chamber unified interpretations, or other means. The negative representative maintained that the direction of judicial practice still cannot be fixed.

The next segment was the constructive speech by the affirmative team's second speaker. First, following up on the previous round of cross-examination regarding whether the operation of KYC is mandatory, the speaker cited Articles 6 and 7 of the Money Laundering Control Act, pointing out that financial institutions shall implement customer due diligence procedures, retain information obtained therefrom, and conduct substantive reviews, with clear penalties stipulated for violations. Next, the affirmative representative clarified the scope of punishment through examples regarding the interpretation of "without justifiable cause." For instance, everyday errands such as a mother collecting red envelopes for her child would not lead to the account being subsequently used for illicit proceeds. As for those with credit issues who use others' accounts as mentioned by the negative, the affirmative gave a positive evaluation that these individuals had no justifiable cause in the first place to use others' accounts, as this already undermined the stability of the financial order. Following this example, the affirmative representative further explained the role mule accounts play in the entire money laundering crime: fraud rings use the anonymity of mule accounts to conduct layered diversion—money is wired to one account, and from that account wired to twenty other accounts, turning into everyday remittances of tens of thousands of dollars, making it impossible to subsequently trace who ultimately uses the illicit proceeds. In other words, if we do not deal with these financial flow break points and the very moment accounts are provided, the Money Laundering Control Act will never be able to properly resolve these illicit crimes. Finally, responding to the negative's claim that the provision is imprecise, the affirmative argued that we should first establish the necessity of preventing and punishing this behavior, and then gradually accumulate experience, enabling judgments to be made from various objective evidence in the future.

Next was the cross-examination of the affirmative team's second speaker by the negative team's first speaker. The negative representative first verified the statutory text cited by the affirmative in the previous round, establishing that account opening reviews by financial institutions are regulated under the Money Laundering Control Act. However, while acknowledging the statutory provisions, the negative expressed doubts about their practical operational effectiveness. Next, the negative pursued the examples given in the affirmative's constructive speech, asking whether exempting a mother keeping red envelopes from punishment while requiring punishment for high-risk behaviors means the affirmative believes there is a dividing line to distinguish the justification for punishment, and further asking how this dividing line should be identified. The affirmative explained through an example: there is a Facebook group called "Online Money Making Group" which claims internally, "Easily make money without facing crowds, ranging from one thousand to four thousand NTD a day, you can inquire via Line." Such situations possess the justification for punishment, whereas the aforementioned red envelope savings example, where no other unidentified financial flows subsequently flow in and out, requires no punishment. The negative argued that individual cases can be outlined very concretely, but there will always be ambiguous cases, and demanded the affirmative abstract the standards, asking whether a small and medium-sized enterprise owner mixing personal and company accounts constitutes justifiable or unjustifiable cause. The affirmative responded that this type of case is actually a current focus of money laundering prevention, namely whether shareholders use personal accounts for abnormal financial flows.

The subsequent segment was the constructive speech of the negative team's second speaker. The negative representative first established that this match discusses two key points: first, how the act itself possesses risks warranting punishment; second, even if such risks exist, should they be punished by criminal law? Does it meet the requirements for invoking the ultima ratio of criminal law? Regarding whether the act possesses risk, the negative representative argued that the affirmative's description method uses objective conditions of punishment to build the appearance that the risk has already occurred, yet fails to directly explain why handing over an account without justifiable cause creates risk. As for the standard for distinguishing justifiable cause, the negative pointed out that the affirmative actually expects a specific interpretation to converge during specific judicial operations. However, leaving aside the fact that judicial interpretations have no possibility of converging, judges often use the standard of a rational ordinary person, along with a certain degree of social background or knowledge, to view the situations of those in society who genuinely face living needs and might hand over accounts. Even if legal professionals shape a stable interpretation within their subjective world, it will only yield distorted conclusions. Furthermore, the affirmative has failed to explain from the outset whether other financial regulatory mechanisms have been considered, or whether other mechanisms are so ineffective that the requirement of ultima ratio has been met.

The final segment of the first stage was the cross-examination of the negative team's second speaker by the affirmative team's second speaker. First, the affirmative argued that if principals and accomplices have different levels of culpability, establishing a separate statutory offense for mule accounts better aligns with the principle of proportional culpability. The negative rebutted that if responsibility proportionality is desired, legislation can also be reenacted to limit the criminal responsibility of accomplices, and the behavior punished by the affirmative—once subjective elements are removed—is an entirely different act and cannot be directly compared. Next, addressing the issue of whether "without justifiable cause" has unclear standards, the affirmative asked about the current standard for determining oblique intent, attempting to show through probing other criminal law requirement standards that the affirmative's "without justifiable cause" might also converge its judgment standards in judicial practice. If an abstract standard is desired, the affirmative clarified it could be formulated as whether there is reasonable belief that a third party using the account has a justifiable and credible reason, or whether relevant objective evidence can be presented to prove the reason provided matches the objective elements.

With the conclusion of the first stage of the match, the second stage proceeded with two guest commentators posing questions to the affirmative and negative teams, with each team sending one representative to answer.

Assistant Professor Kuo-Hsing Hsieh from the Department of Law at National Chung Cheng University questioned the affirmative first. The teacher's first question used a loan case as an example: a party V applied for a loan from a loan company, which requested V's account, stating funds would be wired after completing the lending procedure. It was later discovered the loan company was actually a fraud ring. In this example, did V have justifiable cause for handing over the account? The second question: what are the main reasons the affirmative supports the current draft amendment? The third question: legislators usually legislate based on current laws lacking regulations or having regulatory omissions so that punishable acts go unpunished—does such a situation truly exist currently? The final question: if someone provides an account ATM card and password to a stranger, which is later used for money laundering, should they be punished as an accomplice or a principal under the draft amendment, and can current mechanisms not resolve this, necessitating a legislative amendment?

The affirmative team's second speaker responded that claims in Facebook groups stating one only needs to provide an account to obtain a small loan, or that giving an account yields money immediately, or disguised as work offering tens of thousands a day for working an hour at home, are manifestly unreasonable, and account providers likely harbor suspicions at the time. These individuals who hand over accounts, driven by the lure of minor gains, become crucial account providers within the financial flow break points of the entire fraud, allowing these illegal criminal interests to expand and causing downstream victims to potentially commit suicide or fall into destitution. Therefore, regardless of whether these individuals possessed subjective intent or wished to see victims' families ruined, the affirmative's position is that these dummy account providers must also bear responsibility.

Next, Professor Ying-Chieh Lu from the Department of Law at National Chung Cheng University questioned the negative. First, Professor Lu confirmed whether the negative's position is that the offense of handing over mule accounts should not be established in any chapter of the Money Laundering Control Act, and if so, how to deal with crimes where fraud rings utilize mule accounts. Second, if an account is handed over to a complete stranger, does the negative representative believe this act carries zero risk and no justification for punishment? Furthermore, some US-trained scholars argue that as an account provider, you create a break point in the tracking of financial flows, so providing the account conceals money and constitutes money laundering in itself—how would the negative rebut this argument? Finally, prosecutors would argue that some vulnerable groups hand accounts over simply because they are poor, not stupid; they actually know the accounts will be used for criminal purposes—how should the negative respond?

The negative team's first speaker responded that under this draft amendment, it seems no defense of justifiable cause exists, because whenever a perpetrator argues justifiable cause, the affirmative assumes you couldn't possibly not know: "Since you gave your account to someone else, there is bound to be a risk of wrongdoing; how could you possibly not know given how severe money laundering and fraud are now?" Such a subjective presupposition overly restricts legitimate transactional activities in daily life. Second, the negative believes that for cases with true culpability and clear evidence as mentioned by Professor Lu, even if regulation is necessary, it must first be addressed through non-criminal methods. The government refuses to ask banks to charge account management fees, dares not offend financial institutions, and instead points its spear at the people, attributing responsibility to individuals who may lack the ability or knowledge to foresee that handing an account to another carries risk—which is nothing more than shirking responsibility. Finally, the negative believes the affirmative has fallen into the addiction of legislators using risk criminal law to regulate risk, completely deconstructing the purpose of criminal law in protecting legal interests.

With the second stage concluded, the third stage began with the negative representative delivering closing remarks first, followed by the affirmative representative.

The negative team's second speaker followed up on Professor Lu's question by explaining the background of the demographics involved in dummy account offenses: they might be 20-something college students addicted to online gambling or facing financial needs for household expenses who listened to certain rumors. Past investigations also show that within five years, there were 74 cases involving homeless individuals, 37 of which resulted in guilty verdicts. In our perception, these individuals indeed engage in few financial activities or get involved due to lack of academic knowledge. Some prosecutors might think this is discrimination, but in reality, they truly have criminal intent. However, the negative believes we must bravely confront the knowledge levels across different social strata—this is not discrimination, but rather seeing the realistic situation. Once the affirmative criminalizes this behavior, the backgrounds of vulnerable groups like students and the homeless in need of money will not change. Once we clarify culpability, fraud rings unable to launder money through past methods might directly absorb these financially needy individuals as part of their couriers. The affirmative legislation—shifting the requirement away from needing subjective awareness of the criminal content—does not make the problem entirely disappear; instead, it may lead vulnerable groups to participate more deeply in crime, turning them into true money laundering accomplices. In summary, based on the inherent lack of justification in the legislation and its negative social impact, the offense of handing over mule accounts should not be established in the Money Laundering Control Act.

Finally, the affirmative team's first speaker delivered closing remarks. First, the affirmative argued that wrongful convictions stem from deficiencies in the legal system and the courts' failure to make substantive determinations. If we directly establish the offense of handing over mule accounts within the Money Laundering Control Act, it will be clearer and more protective for the public, while reducing the space for arbitrary judicial judgments. Second, those acts of handing over accounts with justifiable cause actually stem from reasonable trust at the time of delivery, whereas the examples raised by the negative today undoubtedly undermine the trust and stability of the financial order. If the market is flooded with all sorts of mule accounts, would people really dare to wire money to others' accounts? Lastly, from the perspective of fraud prevention, financial difficulty should not be a reason for us to provide accounts. The affirmative also agrees that overall money laundering prevention planning should begin with account opening reviews, reducing criminal behavior by imposing obligations on financial institutions. However, why does the affirmative still believe we should punish individuals who hand over accounts? The affirmative first speaker used their own remote attendance due to COVID-19 contact tracing isolation as an example, pointing out that whether for financial order or epidemic prevention, a country's implementation of overall policy inherently restricts some people's rights while imposing obligations. Obligations should be imposed on financial institutions, individuals, and quarantined persons alike. Therefore, the affirmative maintains that Taiwan's Money Laundering Control Act should add the offense of handing over mule accounts.