As the owners of intellectual property are well aware, convictions for lesser crimes in Taiwan rarely result in the offender actually serving jail time. But don’t let this stop you from doing what needs to be done, it doesn’t matter of it’s a family member. If you need assistance in relation to issues involving parentage and child support, please contact your friendly Family Lawyers on 1800 632 930. If a court sentences an offender to a custodial sentence of up to six months for an offense that carries a maximum of five years, the sentence can be commuted to to a fine (yike fajin ) at a daily rate of NT$1,000 (c. US$33) to $3,000 (c. US$100). Criminal Code § 41.
IP conviction commuted to fine
For example, criminal trademark infringement carries a maximum sentence of three years. Trademark Act § 95. Consequently, sentences for criminal trademark infringement are almost always commuted fines. This is illustrated by a 2011 case in which the Shilin District Court sentenced an offender surnamed Liu to a custodial sentence of 40 days for selling counterfeit computer accessories bearing the Hello Kitty and Audio-Technica marks. The sentence was suspended for two years and commutable to a fine of NT$1,000 per day. Shilin District Court, ShenZhijian 18 (2011).
Commutation is discretionary
While most such sentences are in fact commuted, commutation is not automatic but at the discretion of the prosecutor. Taiwan’s Code of Criminal Procedure provides that the sentences are carried out by the prosecutor at the court that handed down the sentence. § 457. This is construed to mean that the power to commute a sentence is at the discretion of the prosecutor.
Keelung City policy against commutation
The Keelung District Prosecutor’s Office has issued a new policy against drunk driving that illustrates this discretion well. Since June of this year, Keelung prosecutors have been declining to commute sentences of less than six months for drunk driving to fines where the offender has been convicted of driving under the influence twice in the past five years . The Chinese language media Liberty Times reports that 33 drivers in Keelung have not had their sentences commuted to fine as almost certainly would have been the case in other cities or counties and instead have had to serve time for drunk driving. This had led some members of Taiwan’s legal community to argue that drivers in Keelung are being singled out unfairly because this is a purely local policy with no basis in the national policies of the Ministry of Justice (which administers the procurate) or the law. According to this view, the policy of not commuting sentences for these repeat offenders would justified only if the procurate adopts a uniform national policy against commutation of sentences for repeated drunk driving offenses.
Nonetheless, prosecutorial discretion in carrying out sentences is subject to judicial review. The Code of Criminal Procedure provides that a person who has received a sentence may petition the court to review the prosecutor’s carrying out of the sentence for abuse of discretion (budang). § 484. Three offenders have petitioned the Keelung District Court since June for reviews of decisions by the Keelung District Prosecutor’s Office not to commute sentences for drunk driving into fines. One of the petitioners had his petition granted by the court on grounds that his imprisonment would cause undue hardship since he was the sole source of support for his extended family which included his 80 year old mother, young children, and his disabled younger brother. He also promised to reform and not to offend again.