Introduction of Deferred Prosecution System
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- Last updated：2021-01-08
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1. What is Deferred Prosecution?
According to Article 253-1 of The Code of Criminal Procedure, if an accused has committed an offense other than those punishable with death penalty, life imprisonment, or with a minimum punishment of imprisonment for not less than three years, the public prosecutor, after considering the matters specified in Article 57 of the Criminal Code and the maintenance and protection of public interest, deems that a deferred prosecution is appropriate, he may make a ruling to render a deferred prosecution by setting up a period not more than three years and not less than one year thereof, starting from the date the ruling of deferred prosecution is finalized.
2. The origin of the Deferred Prosecution System
After the third reading and in effect of amendment of Articles 161 and 163 of The Code of Criminal Procedure on January 17, 2002, switching the “Principle of ex officio” adopted by the previous Code of Criminal Procedure to “refined adversary system”, in order to effectively carry out the “cross-examination” in court, filter light criminal cases (crimes for under three years of imprisonment), the “deferred prosecution system” (stipulated in Articles 253-1 to 253-3 of the Code of Criminal Procedure) was added at the investigation stage so that prosecutors can control in “adjusting” trial cases, as well as implementing the function of “turning” the criminal policy to avoid unnecessary waste of litigation resources. In February 2002, the Ministry of Justice began working on the relevant implementation plan, held briefings and seminars, and trained prosecutors, probation officers and other related person. In August, the “Rules of Prosecutors Office in Handling the Disposition of Deferred Prosecution” was issued. In accordance with the aforementioned Rules, the compulsory services of in paragraph 5, Article 253-2 of the Code of Criminal Procedure, the necessary orders in paragraph 7 to protect the safety of victims, and the necessary orders in paragraph 8 to prevent recidivism shall all be handled by the probation officers.
The “Rules of Prosecutors Office in Handling the Disposition of Deferred Prosecution” dated August 2, 2002.
4. Items to comply for disposition of deferred prosecution (Article 253-2 of the Code of Criminal Procedure)
In case the prosecutor rules the disposition of deferred prosecution, he may demand the defendant to comply or fulfill the following items within a set period of time:
- Apologize to the victim.
- Write a repentance letter
- Pay a substantial amount of property or non-property compensation for damage to the victim.
- Pay a certain amount of money to the public treasury, designated public interest group or local governance body.
- Provide 40 to 240 hours of voluntary service to designated public interest groups, local governance bodies or communities.
- Complete drug abstinence treatment, psychotherapy, psychological counseling or other appropriate treatment measures.
- The necessary order to protect the safety of victims.
- The necessary order to prevent recidivism.
5. The disposition of deferred prosecution system - Current status of voluntary services:
a) Collect institutions that can provide voluntary services and related auxiliary groups that assist in the education of law: The probation officers assigned to each district use the opportunity of visits to personally visit the public interest groups or local governance bodies registered in the county and city they locate and explain the disposition of deferred prosecution system to them. In general, most of the institutions have a positive attitude toward the government's promotion of the disposition of deferred prosecution system, and they are willing to cooperate. There are currently 25 institutions, communities, and public interest organizations that volunteer to participate.
b) In order to implement the focus management and that the dedicated personnel is familiar with the operation mode of the disposition of deferred prosecution, the probation officer office assigns cases in a rotational manner to specialized courts. At the beginning, cases were handled by Section Chen, Section Shen, and Section Chou. At present, cases are distributed to all sections. Furthermore, in order to solve the problem of insufficient manpower in the probation officer office, an executive assistant has been hired using the special fund for disposition deferred prosecution to assist the probation officer in carrying out related matters.
c) Regarding the implementation of voluntary services: At present, there has been an increasing trend in the “deferred prosecution for demanded/compulsory drug abstention and treatment” cases. The obligations of the deferred prosecution agencies include: School environment cleaning, community environment cleaning, assisting disadvantaged groups to manage their living, document processing, maintenance of public facilities, street cleaning, organizing library books, painting of schools and classrooms, beach cleaning, mountain cleaning, recycling, promotion of crime prevention, ecological conservation, community greening, assisting community celebration events and so on. To be in line with the current types of crimes and the wishes of the defendants, our office will further recruit volunteers to participate in the deferred prosecution agencies as needed.
6. The effect of disposition of deferred prosecution
According to Article 260 of the Code of Criminal Procedure, if a ruling not to prosecute has become final or if a ruling of deferred prosecution has not been set aside during the period set forth in the ruling, no prosecution of the same case shall be initiated except under one of the following conditions.
7. The effect when disposition of deferred prosecution is revoked
a) After the defendant accepts the revocation of the disposition of deferred prosecution, he/she may, within seven days, plead his/her disagreement with letter, and the original prosecutor shall report to the chief public prosecutor of the higher prosecutor office or the public prosecutor general for reconsideration
b) If the original prosecutor considers the application for reconsideration is well-ground, he should be set aside his ruling.
c) If the original prosecutor considers the application for reconsideration is groundless, he/she shall submit the files and evidences to the chief prosecutor of the higher prosecutor office or the public prosecutor general.
d) If the chief prosecutor of the higher prosecutor office or the public prosecutor general considers the reconsideration is groundless, the case shall be dismissed. If the reconsideration is well-grounded, he should be set aside his original ruling.