Despite all the efforts of prosecutors and police to crack down on scam cases, these crimes continue to proliferate.
However, in the past five years, fewer than 1 percent of those convicted of fraud were sentenced to three years or more in prison, while more than 40 percent were sentenced to less than six months. It gives people an impression that engaging in fraud is low-cost and high-yield, which inevitably tempts some to push their luck. Should the judges be blamed for this?
The offense of fraud regulated in Paragraph 1, Article 339 of the Criminal Code is punishable by up to only five years of imprisonment.
However, with the rampant fraud syndicates in Taiwan, when the Criminal Code was amended in 2014, Paragraph 1 of Article 339-4 was added, increasing the punishment for certain kinds of fraud to imprisonment of one to seven years applicable to cases that have three or more accomplices, use broadcast TV, electronic communication, Internet or other media, and are committed in the name of a government agency or public official without authorization.
Last year, those who used AI-generated images to commit fraud were included in these categories of fraud to catch up with technological advances in criminal practices.
However, the penalty of one to seven years’ imprisonment does leave room for judicial discretion, which basically makes harsher punishment impossible. By the time prosecutors start the investigation, the criminal masterminds behind the fraud might have already fled, or had even long been controlling everything from overseas. As a result, the prosecutors can target only the money mules and dummy accounts, making it difficult to root out the criminal groups.
Money mules, and dummy accounts in particular, are at the bottom of the criminal structure, mostly as accessories to the fraud. So, it is impossible to sentence them to the same punishment as those behind criminal offenses.
These accessories might themselves be victims. For example, someone might become a dummy-account provider due to a job search trap, an investment scam or an urgent need for money, etc. It is doubtful whether people in cases like these can all be charged with indefinite intent to aid a fraud.
This would also lead to the fact that even if a judge finds that there is intent to aid a fraud, it is impossible to impose a harsher sentence of three years or more in prison. Therefore, it is unfair to say that the judge passed a lenient sentence.
If harsher punishment for fraud is desired, it is necessary to provide statutory sentencing provisions with different severity based on the offender’s status in the criminal organization and the amount of benefits gained from fraud, so that the severity of punishment is commensurate with the seriousness of the crime.
However, if you cannot hunt down and prosecute the criminal masterminds, amending the law like this would only serve to comfort yourself. Therefore, to solve such problems, in addition to increasing international cooperation in criminal matters, it is necessary to revive the draft technological investigation act that the Ministry of Justice backed down from a few years ago due to strong backlash.
If this legislative proposal is to be brought up again, a fair balance between crime prevention and human rights protection is needed to avoid the criticism of becoming Big Brother — using mass surveillance and abusing state power — which was why the bill was rejected last time.
Wu Ching-chin is a professor and chair of Aletheia University’s Department of Law.
Translated by Lin Lee-kai
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