13 January 2021
The Tainan Branch of the Taiwan High Court rendered the 109-Shang-Su-391 Decision of July 30, 2020 (hereinafter, the “Decision”), holding that since the legal interest of a victim of arson is social and public safety and an act of arson originally has a destructive nature, an act of arson which burns down a home or building and the things inside and the extension of fire to objects other than the burned down home should be included as the same act of arson, and Article 175 or Article 354 of the Criminal Code will not be separately invoked.
According to the facts underlying this Decision, Defendant A, out of an intent to set fire to and destroy an object owned by others, lit up the seat of a heavy motorcycle held and controlled by B parked under the tin scaffolding of OO Mall, thus setting the motorcycle ablaze and destroying it. The extended fire also caused the plastic ceiling of the arcade of OO Mall to melt down and fall and the mall’s canvass signboard next to the tin scaffolding to be blackened by smoke, and part of the plastic canvass of Store XX where the above motorcycle was parked to be destroyed, thereby causing public danger.
According to the Decision, Article 175, Paragraph 1 of the Criminal Code provides for the offense of setting fire to and destroying a thing belonging to another person. According to practical views in the past, the direct legal interest of an offense of arson is general social and public safety. Therefore, although the property legal interest of private individuals is violated at the same time, still protecting the legal interest of social and public safety is more important. Moreover, an act of arson has a destructive nature. Therefore, if an act of arson burns down a home or building and the objects inside, this is different from the scenario where several objects of a crime are concurrently set ablaze and destroyed, regardless of whether such objects belong to others or the arsonist, and the offenses under Article 175, Paragraphs 1 and 2 of the Criminal Code or the offense of damage under Article 354 of the Criminal Code are not separately constituted. In addition, if the fire is set to destroy things other than a home, the things that are destroyed by an extension of fire should also be included in the same act of arson, and this does not separately constitute the fire offense under Article 175, Paragraph 3 of the Criminal Code.
The Decision further states that Defendant A set fire to Complainant B’s heavy motorcycle and caused the plastic ceiling of the arcade of OO Mall to melt down and fall, the canvas signboard of the mall next to the tin scaffolding to be blackened by smoke, and the plastic canvas of Store XX to partially burn down. However, according to the above explanation, the offenses under Article 175, Paragraph 3 or Article 354 of the Criminal Code were not separately charged. According to the gist of the indictment, the Defendant engaged in one act that separately committed the offense under Article 354 of the Criminal Code; and since this is imaginative joinder, the Defendant should be penalized for one of the offenses with the heavier penalty. This should be a misunderstanding.
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