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  • Interpretation
  • No.138
  • Date
  • 1974/05/10
  • Issue
    • Is the power to prosecute in criminal law subject to the statute of limitations despite the fact that the case is on trial upon the institution of public or private prosecution?
  • Holding
    •        Where a public or private prosecution has already been instituted and the case is on trial, the power to prosecute is thus duly exercised, and the situation gives rise to no issue of running out of the statute of limitations
  • Reasoning
    •        The Criminal Code provides in Chapter XI, "Statute of Limitations", of Article 80, Paragraph 1, that the power to prosecute is barred by the statute of limitations if not exercised within the periods therein specified. Thus, it is clear that the statutory element for the statute of limitations of the power to prosecute to run is that it is not exercised, and that insofar as the right is exercised the statute of limitations does not run out. Either the institution of public or private prosecution or an action of accusation by a public or private prosecutor during the process of trial in pursuance of the Code of Criminal Procedure constitutes a lawful exercise of the power to prosecute. In the document presented to this Court, the statement that a public or private prosecution has already been instituted and that the case is actually on trial shows that the power to prosecute is never barred by limitation and is currently being exercised. The fact that there exists no "failure to exercise" as stated above gives rise to no issue of running out of the statute of limitations. 
      
    •        As a rule, the statute of limitations shall run as long as the power to prosecute is not exercised. However, if such right cannot be exercised because of reasons prescribed by law, the provision of Article 83 of the Criminal Code with respect to interruption of the statute of limitations applies. The provision of said article was interpreted by our Interpretation Yuan-tze No. 1963 and restated in the first paragraph of our Interpretation No. 123, both of which have so far undergone no change or modification, although the issue of whether the period of statute of limitations shall run out during the exercise of the power to prosecute was considered beyond the scope of interpretation given therein. 
      
    • *Translated by Raymond T. Chu.
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