Sidelights | Seminar on Practical Responses in the Post-Dummy Account Era | Taipei Session

Regarding whether the mere delivery of a bank account constitutes joint principal offending or aiding and abetting in money laundering under Article 14 of the Money Laundering Control Act (hereinafter referred to as the "MLCA"), judicial practices varied across different periods. However, following the Grand Chamber Ruling 108-Tai-Shang-Da-3101, the unified judicial practice holds that such acts do not constitute joint principal offending; if the actor has awareness and the intent to aid, they shall be charged as an accomplice.

Therefore, prior to the enactment of Article 15-2 of the MLCA, the mere delivery of an account might constitute aiding fraud or aiding money laundering, and lawyers' defense strategies focused heavily on "whether there was an intent to aid." This defense strategy will inevitably change following the enactment of Article 15-2 of the MLCA.

Looking at the offense of simply delivering an account without a justifiable reason under Article 15-2 of the MLCA, it constitutes a principal offense in its own right. Delivering an account without justifiable reasons as stipulated in Article 15-2 will be subject to administrative warnings and administrative penalties, while circumstances falling under paragraph 3 of Article 15-2 will incur criminal penalties. Examining the statutory elements, the legislators initially envisioned imposing administrative warnings for first-time offenders, but practical operations seem to diverge from this legislative preset.

Furthermore, looking at Article 15-2, Paragraph 3, Subparagraph 2 of the MLCA, which concerns "delivering or providing three or more accounts or account numbers in total," is there truly such a vast difference in the nature of the crime whether one, two, or three accounts are delivered? (This reflects the disparity between administrative and criminal penalties). The same issue arises under Article 15-2, Paragraph 3, Subparagraph 3 of the MLCA: "Commitment of the same offense again within five years after being penalized by the municipal or county (city) government police agency pursuant to the provisions of the preceding paragraph or the fourth paragraph."

Moreover, following the enactment of Article 15-2 of the MLCA, how it concurs with the old law has been addressed by Supreme Court Rulings 113-Tai-Shang-826 and 112-Tai-Shang-5592, which established the practical view that Article 15-2 of the MLCA is an interceptive legislation, presenting no issue of statutory concurrence (old versus new law) with provisions such as Article 14 of the MLCA. Consequently, defense strategies should focus on the statutory element of "justifiable reason" under Article 15-2 of the MLCA.

In addition, Supreme Court Ruling 111-Tai-Shang-1075 further categorizes the types of Article 15-2 of the MLCA into delivery types (leasing, lending, recruitment) and non-delivery types (misappropriation and fraudulent use). Based on normal empirical rules, a person of ordinary intelligence knows that "delivering" an account is problematic. Weighing subjective and objective factors, individuals such as those working in the financial sector bear a higher duty of care.

This ruling also suggests that it is inappropriate to evaluate matters retrospectively from the perspective of a rational and objective person without returning to the context of that moment. Therefore, defense should focus on how an actor under normal circumstances would have responded "at that time." Regarding the aforementioned Supreme Court Ruling 111-Tai-Shang-1075, Professor Hsü mentioned that using typification to approach a quasi-presumption—thereby omitting too many details that should be considered in individual cases—is a very dangerous approach. However, after categorizing behavioral types, this ruling does provide assistance for practical case handling.

Regarding situations where an actor faces more than two cases, although it may not always be possible to reach a settlement with all victims, sincere efforts to reach a settlement will serve as an important reference for the court in sentencing. If there are cases at different stages of progress, they should be reviewed based on the facts of the case; if they involve the same factual conduct, the principle of res judicata from a prior case applies, raising the issue of prohibiting duplicate evaluation.

Speaker | Hsü Wei-Ch'un, Chairperson of the Legal Aid Foundation New Taipei Branch, Standing Executive Committee Member of the Judicial Reform Foundation, and Associate Professor at the Department of Financial and Economic Law, Chung Yuan Christian University

Article 15-2 of the MLCA was originally enacted with three intended problems (objectives) to solve:

1. To bypass the difficulty of establishing intent.
2. To reduce the judicial burden.
3. To deter the spread of fraud offenses.

First, however, following the implementation of Article 15-2 of the MLCA, the number of telecom fraud cases has not decreased but rather increased. Furthermore, the interpretive model of Article 15-2 of the MLCA adopts a dual approach of administrative regulation and criminal punishment—in other words, an interceptive legislative model which inherently expands the scope of punishment to areas that previous criminal offenses could not reach. From the perspective of case volume, this means generating new cases under the new law alongside existing ones, thereby ultimately increasing the judicial burden. Finally, the introduction of Article 15-2 of the MLCA requires not only examining whether its statutory elements are met, but also further examining whether the conduct extends into the realm of fraud or money laundering. In short, it fails to achieve the objective of bypassing the difficulty of proving intent; instead, it creates the additional burden of determining whether a "justifiable reason" exists under Article 15-2. Enacting Article 15-2 of the MLCA has utterly failed to achieve its presupposed effects.

The original design of Article 15-2 of the MLCA aimed to simplify constitutive requirements to achieve a conviction without the need for proof, thereby accelerating case processing. However, achieving conviction without the need for proof is not criminal justice.

Therefore, synthesizing the above, the conclusion regarding the enactment of Article 15-2 of the MLCA is that none of its preset objectives were achieved; instead, matters have become more complicated. Drafts such as the Fraud Crime Hazard Prevention Act proposed by the Executive Yuan share the same flaw: more criminal penalties mean more statutory concurrence issues, which fails to resolve the lack of legitimacy in punishment.

For instance, the requirement under Article 43 of the Draft Fraud Crime Hazard Prevention Act—"where property or property interests obtained through fraud reach NT$10 million"—will subject both the core mastermind and minor accomplices to the same severe punishment of "imprisonment for not less than three years and up to ten years." The legitimacy of such punishment is questionable. Moreover, a legislative model of building layers upon layers will lead to further problems, proving once again that "the superstition that criminal law can solve all problems is false."

Regarding the account management measures under Article 15-2 of the MLCA, where the inadequacies of criminal law are advanced into administrative penalties, avenues for legal remedy must be provided. Without remedies, regulatory behaviors will be excessively prejudged. Restrictive measures such as freezing accounts entirely lack avenues for remedy, infringing upon the rights and interests of the parties involved. In practice, banks impose direct controls upon receiving notifications from the competent authorities; yet, such regulatory measures that heavily infringe upon individual rights ought to be governed by the principle of legal reservation.