Criminal Judgment concerning defamation by Cheng Jung-wei and Chang Kuo-ts'ai
Chinese Taipei
Case:
Criminal Judgment concerning defamation by Cheng Jung-wei and Chang Kuo-ts'ai
Key Words:
business reputation, constructive joinder [of offenses], aggravated libel
Reference:
Supreme Court Criminal Judgment (88) T'ai Fei Tzu No. 21
Industry:
Timepiece Manufacturing Industry (3320)
Relevant Laws:
Articles 22 of the Fair Trade Law
Summary:
Grounds for the extraordinary appeal:
Under Article 310(2) of the Criminal Code, aggravated defamation refers to
the commitment of the offense of defamation in Article 310(1) by means of
disseminating the [defamatory information] in the form of writing or
picture. The establishment of such an offense is predicated on the intent to
disseminate [the information] to the public. Namely, the offender must have
converted the information that would harm the reputation of another into
writing or picture, and then disseminated them to the non-specific public.
The mere dissemination [of information] to specific persons or specific
agencies would not constitute the offense in that article. The facts in this
case as ascertained in the high court judgment are as follows: the
defendants faxed untruthful information that would harm the business
reputation of Racer Corporation ("Racer") to the Japan-based
Teraoka Seiko Co., Ltd. ("Teraoka Japan") or Nissei Industries
Company Limited ("Nissei"). The act merely consisted of secretly
informing specific companies in Japan; it did not constitute criminal intent
to disseminate [information] to the non-specific Japanese public unrelated
to business competition. The defendants' further acts of sending an attested
letter to the Hsi Chih branch of Hua Nan Commercial Bank, Ltd., and sending
a letter to Teraoka merely amounted to passing on hearsay to specific legal
persons who were interested parties. They did not constitute criminal intent
or criminal action to put that hearsay in writing and disseminate it to
non-specific persons in Chinese Taipei and abroad. In light of the above
explanation, the actions of the defendants obviously do not meet the
prerequisites for aggravated defamation.
Aggravated defamation under Article 310(2) of the Criminal Code refers to
injuring the reputation of another. In terms of the legal interests
protected, this differs from the crime of injuring the credit of another
under Article 313, which refers to injuring another person's economic rating
in society. Simultaneously injuring another person's reputation and credit
by one act would constitute an Idealkonkurreaz (imaginative joinder
of offenses), so only the most severe of the prescribed punishments should
be imposed as provided by Article 55 of the Criminal Code. The high court
judgment held that the defendants, by means of fax and letter, disseminated
untruths that would injure the business reputation of the complainant, and
thus committed offenses under Article 313 of the Criminal Code and Articles
22 and 37 of the Fair Trade Law, and also committed the offense of
aggravated libel under Article 310(2) of the Criminal Code. It further held
that there was a concurrence of laws, and that, under the principle that
special provisions take precedence over general provisions, punishment
should be imposed pursuant to Criminal Code Article 313. Upon consideration
of the above, it is evident that the law was inappropriately applied in the
high court judgment, and since the judgment had become final and was
unfavorable to the defendant, an extraordinary appeal was filed to seek
remedy pursuant to Articles 441 and 443 of the Code of Criminal Procedure.
The judgment of first instance in this case held that the
defendants Cheng Jung-wei and Chang Kuo-ts'ai acted jointly in successively
transmitting by fax to the Japan-based Teraoka and Nissei untruths that
would injure the business reputation of Racer; in transmitting by attested
letter to Hua Nan Commercial Bank untruths that would injure the business
reputation of Teraoka Corporation [Chinese Taipei] ("Teraoka-C")
and Racer; and further in transmitting by letter to Teraoka Japan untruths
that would injure the business reputation of Teraoka-C. It held that the
defendants had thereby committed the offenses of injuring credit under
Article 313 of the Criminal Code, injuring the business reputation of
another under Articles 22 and 27 of the Fair Trade Law, and additionally of
aggravated libel under Article 310(2) of the Criminal Code. It further held
that, under the principle that special laws take precedence over general
laws, the defendants should be punished pursuant to the provisions of
Article 313 of the Criminal Code.
However, the judgment did not explicitly hold in the facts of the case that
the defendants intended, or acted, to disseminate [untruths] to the public,
so no basis exists for application of Article 310(2). Furthermore, it held
that the defendants' transmission of untruths by fax, attested letter, and
letter to the interested parties Teraoka Japan, Teraoka-C, and the Hsi Chih
branch of the Hua Nan Commercial Bank was obviously merely transmission to
those specific persons and not dissemination to the public, and so does not
satisfy the requirements for application of Article 310(2). Yet the
judgment's statement of reasons asserts that the defendants committed the
crime of aggravated libel under Article 310(2). The judgment is thus
contrary to law in that it applies law improperly and gives contradictory
reasons.
Also, "concurrence of articles of law" under the Criminal Code
means one act infringing on one legal interest where such act constitutes an
offense under multiple articles of law. Since the same legal interest is
protected by each of the articles, the valuation of the act should not be
multiplied. The crime can be charged under only one article of law, and
application of other articles is precluded. In essence, this means that only
one of the concurrent articles should be chosen for application to the one
crime. An "imaginative joinder of offenses," on the other hand,
means one act infringing on multiple legal interests where such act
constitutes an offense under multiple articles of law. The valuation of the
act should be multiplied in such cases, and the offender should be charged
on multiple counts of the same or different offenses. However, based on the
principle of equitable punishment, the law provides that only the most
severe of the prescribed punishments shall be imposed, in accordance with
Article 55 of the Criminal Code.
In this regard, the judgment of first instance held that the case involved a
concurrence of [articles of] laws, and so, under the principle of
"special law takes precedence over general law," selected Article
313 of the Criminal Code under which to impose punishment. This judgment
thus also improperly applied the law, and so is unlawful.
Summarized by Ch'iu, Shu-fen
Supervised by Hsu, Chao-ying