Taiwan - The Scope Of “Property Interest Obtained From The Commission Of A Crime” In The Offense Of Illegal Absorption Of Funds Shall Be The Entire Funds.
Legal News & Analysis - Asia Pacific - Taiwan - Regulatory & Compliance
20 July 2021
The Supreme Court rendered the 109-Tai-Shang-3917 Decision (hereinafter, the “Decision”), holding that the “property interest obtained from the commission of a crime” within the meaning of Article 125, Paragraph 1 of the Banking Law should be interpreted to cover all funds absorbed from external parties by the actor and the compensation and property interest obtained from the commission of a crime.
In this case, the Defendant asserted that even if the original decision held that the Defendant had constituted illegal absorption of funds or deposits in the course of the illegal operation of banking business, still the original decision failed to investigate if the Defendant had returned the victims’ principals in determining the amount of property interest obtained from the commission of the crime in this case and to deduct the bonuses which the Defendant had returned to the victims, thus constituting the illegality of insufficient investigation and insufficiency of grounds.
However, as pointed out by this Decision, the original decision is not unlawful for failure to deduct the bonuses according to the gist of the Decision. According to the legislative objective of the last part of Article 125, Paragraph 1 of the Banking Law, since the purpose is to penalize the size of an actor’s illegal absorption of funds, the property interest obtained from the commission should be interpreted to cover all funds absorbed by the actor from external parties and the compensation and property interest obtained from the commission of a crime. According to the unified court precedents , if the principals of the victims are deducted from the calculation of the property interest obtained from the commission of a crime, the balance would not be the entire amount of the illegally absorbed fund and obviously cannot truly reflect the true scale of external absorption of funds. Moreover, if the principals which have been returned to the victims are deducted without deducting the principals that should be returned to the victims in the future, there would also be a theoretical contradiction. In addition, if the principals which have been returned and should be returned in the future are deducted, it may potentially result in the scenario that there may not be any proceeds of crime, which certainly violates the legislative objective mentioned above. Therefore, since the investment principals of the victims, whether they have been returned or should be returned in the future, are funds illegally absorbed by the actor from external parties, they should certainly be included in the property interest obtained from the commission of a crime.
For further information, please contact:
Elva Chuang, Lee Tsai & Partners