A soldier who went missing from Kinmen County on Thursday last week has been confirmed to be in China. It has not been determined why the soldier swam there, but the situation does raise the question of criminal liability.
A serving member of the military who surrenders to an enemy is punishable under Article 24 of the Criminal Code of the Armed Forces (陸海空軍刑法) and liable to imprisonment of no less than 10 years, life imprisonment or the death penalty, depending on the severity of the crime.
The applicability of this law to defections to the Chinese communists has caused controversy over whether China should be considered an enemy state. This is because Article 11 of the Additional Articles of the Republic of China Constitution (中華民國憲法增修條文) treats China as part of the “mainland area,” not a foreign country.
This presents complications for the application of the crime of treason, which involves safeguarding the state’s existence. When the Criminal Code was amended in 2019, the loophole was meant to be closed by the addition of Article 115-1, extending liability for treason to “offenses committed in Mainland China, Hong Kong, Macau, or any hostile foreign forces, or to the agents thereof.”
This amendment only settled the question of whether China is to be considered a foreign country; the matter of whether it could be considered an enemy in the eyes of the law remains unresolved. The definition of an enemy state depends on how authorities interpret the situation.
Although the Chinese People’s Liberation Army has been sending jets close to Taiwan’s airspace, there is no explicit provision in laws or official documents that considers the other side of the Taiwan Strait as an enemy state or enemy force, and this makes the application of the crime of defection to China problematic.
Consequently, if a soldier swims to the other side, they can only be punished for attempting to dodge military service.
Article 39 of the Criminal Code of the Armed Forces says a person who tries to avoid military service over a long period for the purpose of evasion could be imprisoned for up to five years, but a person who tries to escape service could have the penalty reduced if they return within six days.
The offense, then, must be committed with the intent of evading military service for a long period. If done because of emotional stress or other pressures, it would not be considered as having been committed with the intention to evade service, and would fall under Article 40 of the Criminal Code of the Armed Forces and be punishable by up to three years in prison.
This is why the notice of evasion was not issued until Wednesday, six days after the person went missing.
Further complications arise if China is unwilling to repatriate the soldier. The crime has been established, but the act is ongoing, and according to Article 80 of the Criminal Code, the statute of limitations commences from the day the offense is committed. If the offense is of a continuing nature, the period commences from the last day on which the offense is completed.
As long as the person has not returned to Taiwan to face arrest, the act is continuing and the statute of limitations does not start to run.
There is precedent in the case of Justin Lin (林毅夫), who defected to China by swimming from Kinmen to Xiamen in 1979.
Wu Ching-chin is a professor of law at Aletheia University and director of its Research Center for Criminal Law.
Translated by Paul Cooper
There are moments in history when America has turned its back on its principles and withdrawn from past commitments in service of higher goals. For example, US-Soviet Cold War competition compelled America to make a range of deals with unsavory and undemocratic figures across Latin America and Africa in service of geostrategic aims. The United States overlooked mass atrocities against the Bengali population in modern-day Bangladesh in the early 1970s in service of its tilt toward Pakistan, a relationship the Nixon administration deemed critical to its larger aims in developing relations with China. Then, of course, America switched diplomatic recognition
The international women’s soccer match between Taiwan and New Zealand at the Kaohsiung Nanzih Football Stadium, scheduled for Tuesday last week, was canceled at the last minute amid safety concerns over poor field conditions raised by the visiting team. The Football Ferns, as New Zealand’s women’s soccer team are known, had arrived in Taiwan one week earlier to prepare and soon raised their concerns. Efforts were made to improve the field, but the replacement patches of grass could not grow fast enough. The Football Ferns canceled the closed-door training match and then days later, the main event against Team Taiwan. The safety
The National Immigration Agency on Tuesday said it had notified some naturalized citizens from China that they still had to renounce their People’s Republic of China (PRC) citizenship. They must provide proof that they have canceled their household registration in China within three months of the receipt of the notice. If they do not, the agency said it would cancel their household registration in Taiwan. Chinese are required to give up their PRC citizenship and household registration to become Republic of China (ROC) nationals, Mainland Affairs Council Minister Chiu Chui-cheng (邱垂正) said. He was referring to Article 9-1 of the Act
Strategic thinker Carl von Clausewitz has said that “war is politics by other means,” while investment guru Warren Buffett has said that “tariffs are an act of war.” Both aphorisms apply to China, which has long been engaged in a multifront political, economic and informational war against the US and the rest of the West. Kinetically also, China has launched the early stages of actual global conflict with its threats and aggressive moves against Taiwan, the Philippines and Japan, and its support for North Korea’s reckless actions against South Korea that could reignite the Korean War. Former US presidents Barack Obama
RSS