Civilian Version of the Amendment to the Money Laundering Control Act (Adding the "Crime of Unjustified Delivery of Accounts", Including Comparison with the Executive Yuan Version)

I. General Explanation of the Civilian Draft (Similarities and Differences with the Judicial Yuan and Executive Yuan Versions)

1. Paragraph 1 of the draft amendment explicitly excludes circumstances in the current judicial practice that are most likely to cause the general public to fall into error from the scope of justified reasons. However, without corresponding support measures from the current government, directly and explicitly excluding the circumstances in which the public is most easily deceived from justified reasons and uniformly applying criminal penalties is evidently inappropriate. Considering that cases where the general public is deceived and falls into error still warrant discretionary review on a case-by-case basis, the text and the legislative intent are hereby amended (Amendment to Paragraph 1, Article 15-2).

2. To ensure that police dispositions regarding violations of Paragraph 1 have clear records for subsequent proceedings and to define the starting point for calculating time limits under Subparagraph 3, such warnings should preferably be made in writing. Furthermore, regarding whether and how the counterparty may seek remedies for this disposition, both the amended provisions and the legislative explanation are completely silent and require further clarification (Amendment to Paragraph 2, Article 15-2).

3. The crime of unjustified delivery of accounts added in Paragraph 3 of the Executive Yuan version encompasses a fairly broad range of conduct. Although it excludes circumstances conforming to general commercial practices and those that are reasonable and justified according to general societal perceptions, its legislative approach uses a proviso for subsequent exclusion—meaning that the aforementioned conduct is still evaluated as a criminal offense in principle, and is exempted from punishment only when the actor can prove that an exception under the proviso applies. This regulatory approach, which generally evaluates the social conduct of the people as a crime and then provides exceptions for exclusion, is highly questionable. Therefore, the scope of criminalization for related conduct should not be limited solely to objective conduct and the intent to commit such conduct; it should also be restricted to cases where the actor has "the intent to obtain unlawful benefits for oneself or a third party" to be duly applicable (Amendment to Paragraph 3, Article 15-2).

4. Furthermore, the newly added provision penalizes the act of "unjustified delivery of accounts" with criminal sanctions. However, apart from the circumstances in Subparagraphs 1 and 2 of Paragraph 3 of Article 15-2, if members of the public receive a warning disposition after handing over their accounts, how should this concur with the aiding and abetting fraud offense recognized in current judicial practice? If the legislature criminalizes the "unjustified delivery of accounts" independently, should this supersede the recognition methods of current judicial practice—meaning that after the enforcement of this Act, the act of delivering accounts will no longer fall within the scope of aiding and abetting fraud (or aiding other crimes)? Or does it merely increase the risk of the actor being penalized? The Executive Yuan should explain in detail the application and concurrence of the newly added provisions of this Act. Moreover, to clarify relevant legislative facts, the Executive Yuan should also release statistical data on members of the public whose accounts were frozen immediately after being discovered following the delivery of accounts, without any fraud having yet commenced. Otherwise, if in investigative practice, investigations and account freezing only commence after someone has been deceived, will this offense merely constitute an accomplice to other crimes with no possibility of independent application? This issue of concurrence has a significant impact on people's rights and is one of the main issues of this legal amendment; the Executive Yuan should clarify it in the legislative explanation. Regarding this issue, the Judicial Yuan also pointed out in its written report (Yuan-Tai-Ting-Hsing-I-Zi No. 1120300196, March 6, 2023, page 1664) that: "This Yuan raises the following opinions regarding the revised draft: ... (2) It is recommended to explain the legislative purpose of this Article and state clearly the legal application relationship between this Article, the crime of money laundering under Article 14, and Paragraph 1 of Article 30 and Article 339 of the Criminal Code."

II. Civilian Version of Provisions and Comparison Table (The following provisions are newly added, hence there are no current provisions)

Underlined text indicates the wording suggested by the civilian version (differing from the Executive Yuan version).

Civilian Version	Executive Yuan Version	Civilian Version Opinions or Provision Explanations
Article 15-2 No person may deliver or provide accounts opened by oneself or another person with a financial institution, or accounts applied for with an enterprise engaging in virtual currency platforms and transaction businesses or a third-party payment service business, for use by others. However, this shall not apply to cases conforming to general commercial and financial transaction practices, based on a trusting relationship among relatives and friends, due to falling into error, or for other justified reasons. Anyone who violates the provisions of the preceding paragraph shall be subject to a written warning disposition by the police bureau of the municipality or county (city) government. The same shall apply to anyone who violates the provisions of the preceding paragraph again more than five years after being subjected to a written warning disposition. With the intent to obtain unlawful benefits for oneself or a third party, any person who violates Paragraph 1 and falls under any of the following circumstances shall be sentenced to imprisonment for not more than three years, short-term detention, or in lieu thereof or in addition thereto, a fine of not more than NT$1,000,000: 1. Committing the offense by negotiating for or receiving counterpart compensation. 2. Delivering or providing a total of three or more accounts or account numbers. 3. Committing the offense again within five years after being subjected to a disposition by the police bureau of a municipality or county (city) government pursuant to the preceding paragraph or the following paragraph. The circumstances in Subparagraph 1 or Subparagraph 2 of the preceding paragraph shall also be concurrently subject to a disposition by the competent authority pursuant to Paragraph 2.	Article 15-2 No person may deliver or provide accounts opened by oneself or another person with a financial institution, or accounts applied for with an enterprise engaging in virtual currency platforms and transaction businesses or a third-party payment service business, for use by others. However, this shall not apply to cases conforming to general commercial and financial transaction practices, based on a trusting relationship among relatives and friends, or for other justified reasons. Anyone who violates the provisions of the preceding paragraph shall be subject to a warning disposition by the police bureau of the municipality or county (city) government. The same shall apply to anyone who violates the provisions of the preceding paragraph again more than five years after being subjected to a warning disposition. Any person who violates Paragraph 1 and falls under any of the following circumstances shall be sentenced to imprisonment for not more than three years, short-term detention, or in lieu thereof or in addition thereto, a fine of not more than NT$1,000,000: 1. Committing the offense by negotiating for or receiving counterpart compensation. 2. Delivering or providing a total of three or more accounts or account numbers. 3. Committing the offense again within five years after being subjected to a disposition by the police bureau of a municipality or county (city) government pursuant to the preceding paragraph or the following paragraph. The circumstances in Subparagraph 1 or Subparagraph 2 of the preceding paragraph shall also be concurrently subject to a disposition by the competent authority pursuant to Paragraph 2.	Explanation of amendments to Paragraph 1 of the Civilian Version: Paragraph 1 of the draft amendment explicitly excludes circumstances in current judicial practice that are most likely to cause the general public to fall into error from the scope of justified reasons. However, without corresponding support measures from the current government, directly and explicitly excluding the circumstances in which the public is most easily deceived from justified reasons is evidently inappropriate. In practice, Criminal Judgment 111-Tai-Shang-1075 of the Supreme Court also held that: "Therefore, regarding an actor who simply delivers an account to another person and has it utilized by a fraud syndicate as a tool for scamming, unless it is a phantom defense, it is inappropriate to conclude solely on the grounds that the actor is a person of sound mind, possesses general educational attainment, or has corresponding life, work, or borrowing experience, and that the government or media have widely propagated that fraud syndicates often use dummy accounts for illicit proceeds, that according to 'general common sense' or 'empirical rules,' the actor should have known that opening a bank account is very easy and there is no need to use another person's account, or that account passwords and withdrawal cards should be kept separately, or that passbooks and withdrawal cards should not be handed over to strangers, and that if illegally used, it would needlessly increase litigation burdens or prosecution risks—that their delivery of an account for use by another must constitute the offenses of aiding and abestation of fraud and money laundering. Instead, various subjective and objective factors and the personal circumstances of the actor should be comprehensively evaluated, such as whether the actor was originally a financial or related industry practitioner, whether they had previous identical or similar experiences in delivering accounts, whether they even joined a fraud syndicate, whether they obtained disproportionately exorbitant remuneration, whether they deliberately emptied the funds therein prior to delivering the account, whether they were informed that the account was to be used for illegal acts such as underground gambling or remittance, or whether they were requested to deliver account information through unusual methods or at unusual locations, in order to determine whether their act of delivering the account constitutes the aforementioned aiding offense." Criminal Judgment 111-Tai-Shang-2663 also pointed out: "If ordinary people would fall into error due to deception by a fraud syndicate and consequently deliver huge amounts of property, it is truly not hard to imagine that a holder of a financial account would fall into error for the same reason and provide account information for use by others. Naturally, one cannot use the intellect and experience of us objective ordinary persons as a benchmark to presumptuously infer that such persons must possess the same level of vigilance and must have foreseen the facts constituting the crime, let alone the fact that the defendant in this case did not even deliver the withdrawal card, passbook, and password of the account, rendering their guard even lower than that of a person who delivers account information." With reference to the above practical judicial views, the wording of Paragraph 1 is amended. Furthermore, item "5" of the explanation column in the Executive Yuan version states: "Current judicial practice frequently sees methods such as applying for loans or job interviews used to request others to deliver and provide dummy accounts and account numbers for use by others, all of which do not conform to general commercial practices. This is because applying for loans or job interviews only requires providing the account number information of personal accounts to receive loan disbursements or salaries, and does not require delivering or providing the necessary items (such as withdrawal cards, U-tokens, etc.) or information (such as account numbers and passwords, verification codes, etc.) required for the account and account number payment functions to the lender or employer; in other words, delivering or providing accounts or account numbers to others for 'use' on the grounds of applying for loans or job interviews no longer constitutes a justified reason as referred to in this Article." This explanation, which indiscriminately excludes the aforementioned circumstances from justified reasons without regard to the specific context, clearly violates the core tenets of the aforementioned Supreme Court judgments and restricts the court's discretion in concretely determining the actor's criminal motivation in individual cases; it is patently inappropriate and should be deleted. Explanation and opinions regarding amendments to Paragraph 2 of the Civilian Version: To ensure that police dispositions regarding violations of Paragraph 1 have clear records for subsequent proceedings and to define the starting point for calculating time limits under Subparagraph 3, such warnings should preferably be made in writing. Furthermore, regarding whether and how the counterparty may seek remedies for this disposition, both the amended provisions and the legislative explanation are completely silent and require further clarification. Explanation of amendments to Paragraph 3 of the Civilian Version: The crime of unjustified delivery of accounts added in Paragraph 3 of the Executive Yuan version encompasses a fairly broad range of conduct. Although it excludes circumstances conforming to general commercial practices and those that are reasonable and justified according to general societal perceptions, its legislative approach uses a proviso for subsequent exclusion—meaning that the aforementioned conduct is still evaluated as a criminal offense in principle, and is exempted from punishment only when the actor can prove that an exception under the proviso applies. This regulatory approach, which generally evaluates the social conduct of the people as a crime and then provides exceptions for exclusion, is highly questionable. Therefore, the scope of criminalization for related conduct should not be limited solely to objective conduct and the intent to commit such conduct; it should also be restricted to cases where the actor has "the intent to obtain unlawful benefits for oneself or a third party." Paragraph 3 is amended accordingly.