25 November 2020
The Supreme Court rendered the 109-Tai-Shang-3055 Decision of July 19, 2020 (hereinafter, the “Decision”), holding that in the absence of direct evidence, the court may consider and determine a matter based on the external characteristics of the actor and the objective circumstances surrounding the act, together with all kinds of indirect or circumstantial evidence, as well as empirical and logical rules.
According to the facts underlying this Decision, Individual A, a woman from the Mainland area, sought to enter the Taiwan area through a fake marriage by hiring Individual B to introduce a fake spouse to whom she was willing to pay a compensation. B inquired about C’s willingness and indicated that if A could enter Taiwan successfully, C would receive NT$50,000 and a monthly payment of NT$5,000 after A’s entry to Taiwan. C agreed, and both of them were obviously aware that A is a citizen of the Mainland area and should not enter the Taiwan area without an approval of the competent authority, not to mention that A subjectively did not have the true intention to marry C. However, out of the joint profiteering intent, B accompanied C to the Civil Affairs Bureau of Fuzhou City of Fujian Province in the Mainland area to fraudulently register the marriage with A and handle the notarization formalities and obtained a marriage certificate. After returning to Taiwan, C presented the marriage certificate to the Strait Exchange Foundation (hereinafter, the “SEF”) to certify the certificate issued in the Mainland area. After a certificate was issued by the SEF, C included documents such as the above marriage certificate, notarization certificate and certificate in his application to the National Immigration Agency of the Ministry of the Interior for A’s entry to Taiwan on the group of reunion in Taiwan with his spouse in an attempt to allow A to illegally enter the Taiwan area through a fake marriage. The attempt was foiled by the personnel of the National Immigration Administration who detected abnormalities in the course of interview and rejected A’s entry to the Taiwan area. As a result of the investigation conducted by the district prosecutors, this case was prosecuted for the offense of causing the people of the Mainland area to enter the Taiwan area for profiteering in violation of Article 70, Paragraph 2 of the Statute for the Relations between the People of the Taiwan Area and the Mainland Area.
According to the Decision, with the exception of negligent crimes, all crimes are committed with their objectives in mind. To wit, the actor commits a crime for a specific objective or intention. The legislative policy only stipulates the criminal objective of certain acts as a constituting criterion of the penal law, but the legal term is called intent, and this refers to an intent crime. Therefore, the criminal intent for an intent crime is a subjective element and a special constituting criterion for a crime. However, the subjective constituting criterion, or the “intent” required under the law, is a mental state deeply hidden in a person’s consciousnesses, and it is usually more difficult to obtain direct external evidence to prove mental activities within the actor. As a consequence, in the absence of direct evidence, the court may consider and determine a matter based on the external characteristics of the actor and the objective circumstances surrounding the act, together with all kinds of direct or circumstantial evidence, social practices and human nature, and empirical and logical rules.
It was further pointed out in this Decision that the original decision has specifically stated the basis and reasons for concluding that the Appellants B and C both jointly attempted to cause A, a woman from the Mainland area, to illegally enter the Taiwan area based on relevant evidentiary materials and situations such as the interview of B and C by the personnel of the Taichung City Brigade and statements obtained in the course of the investigation and by way of inference. Since the original trial court provided specific explanation based on the court files, its determination does not violate any empirical or logical rule. The gist of the appeal filed by the Appellants overlooked the clear arguments in the original decision and disputed the legally appropriate act of the original trial court in the adoption of evidence and finding of facts within its authority, is not a legally appropriate ground for appealing to the third instance court.
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Angela Wu, Lee Tsai & Partners
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