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  • Interpretation
  • No.96
  • Date
  • 1962/06/27
  • Issue
    • 1. Does the conduct of offering bribes prescribed in Article 122, Paragraph 3, of the Criminal Law constitute an offense of malfeasance?
    • 2. Is a person who engages in aiding or abetting the conduct of offering bribes considered to have committed an offense of malfeasance?
  • Holding
    •        The conduct of offering bribes prescribed in Article 122, Paragraph 3, of the Criminal Law does not constitute an offense of malfeasance in nature. Any person who aids and abets in the conduct of offering bribes is also not considered to have committed an offense of malfeasance. 
      
  • Reasoning
    •        To be guilty of the offense of malfeasance, the offender must have a specific identity (civil servant). However, in regard to the offering of bribes prescribed in Article 122, Paragraph 3, of the Criminal Law, the offender need not have a specific identity (civil servant). Thus, the elements of offense, criminal sanction, and reduction or exemption of sentence for those offering bribes are different from the elements of offense, criminal sanction, and reduction or exemption of sentence for a civil servant who receives bribes. The conduct of offering bribes prescribed in Article 122, Paragraph 3, of the Criminal Law is a distinct offense. The provisions set forth in Article 31, Paragraph 1, of the Criminal Law are therefore not applicable to the conduct of offering bribes prescribed in Article 122, Paragraph 3, of the Criminal Law (See J.Y. Interpretation No. 2729). The aiding and abetting of the conduct of offering bribes shall be respectively governed by the provisions set forth in Articles 29 and 30 of the Criminal Law. The provisions set forth in Article 31, Paragraph 1, of the Criminal Law are therefore not applicable to the aiding and abetting of the conduct of offering bribes. Any person who offers bribes without requiring the offeree to give/do something in return or to accept bribes is considered to have committed an offense of bribery. On the other hand, any person who demands bribes within a specific time, has not necessarily committed an offense of bribery. Since the conduct of offering bribes and the conduct of receiving bribes are different in nature, the person who offers bribes and the person who receives bribes are not necessarily accomplices of bribery. The provisions governing accomplices are therefore not applicable to the person who offers bribes and the person who receives bribes. For the aforementioned reasons, the conduct of offering bribes prescribed in Article 122, Paragraph 3, of the Criminal Law does not constitute an offense of malfeasance. The conduct of offering bribes and the conduct of receiving bribes are listed together in Article 122 of the Criminal Law for legislative convenience only. The same ruling is applicable to the disclosure of classified national security information by a civilian listed in Article 132, Paragraph 3, of the Criminal Law together with the disclosure of classified national security information by a civil servant.         
      
    • *Translated by Li-Chih Lin, Esq., J.D.
      
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