Regardless of the identity of the offender, the conduct of offering a bribe is distinct from the corruptive conduct of accepting a bribe in nature. Article 15, Paragraph 2, of the Civil Servant Appointment Law is not applicable to the conduct of offering a bribe. J.Y. Interpretation No. 96, which holds that the conduct of offering a bribe prescribed in Article 122, Paragraph 3, of the Criminal Code does not constitute an offense of malfeasance, is consistent with the substance of this Judicial Interpretation and shall therefore be upheld. 

       The Grand Justices Council reached a resolution at the 180th Grand Justices’ Council Meeting stating that: “When a central or local government agency applies for a supplemental constitutional interpretation of a judicial interpretation because a controversy has arisen from the application of the Constitution, statutes or ordinances under their authorities pursuant to that interpretation, the Grand Justices Council may provide a supplemental constitutional interpretation of the judicial interpretation at issue pursuant to the provisions set forth in Article 4 or Article 7 of the Law Governing the Adjudication of the Grand Justices Council.” The purpose of the aforementioned resolution is to clarify the controversy arising from the application of the judicial interpretation or to ratify or supplement the judicial interpretation. This J.Y. Interpretation was applied by the Examination Yuan under its authority for a controversy arising from the application of J.Y. Interpretation No. 96, which held that the conduct of offering a bribe prescribed in Article 122, Paragraph 3, of the Criminal Code does not constitute an offense of malfeasance. The Examination Yuan concludes that the Grand Justices Council shall provide a supplemental constitutional interpretation of the J.Y. Interpretation No. 96 pursuant to the aforementioned resolution.  

       To offer a bribe, it is not necessary that the offender must have a specific identity (civil servant). While the counterpart of offering a bribe to a civil servant is the corruptive conduct of a civil servant accepting a bribe, the elements of offense, criminal sanction, and reduction or exemption of sentence for offering a bribe are different from the elements of offense, criminal sanction, and reduction or exemption of sentence for a civil servant accepting a bribe. Thus, the conduct of offering a bribe is distinct from the corruptive conduct of accepting a bribe in nature. The provisions in Article 11, Paragraph 1, of the Statute for the Punishment of Corruption during the Period of National Mobilization for Suppression of the Communist Rebellion (hereinafter “The Statute”) were set forth to provide an additional sanction on a person who performs civil duty under the law or under commission by a government agency. The provisions in Article 11, Paragraph 1, of the Statute were not set forth to change the nature of the bribing conduct. Even when the bribing conduct may be separately governed by Article 12, Paragraph 2, of the Statute or other statutes which provide a lenient sentence when the bribing conduct is not serious, and the bribe demanded within a specific time is less than NT$ 3000, the conduct of offering a bribe is still distinct from the corruptive conduct of accepting a bribe. Thus, Article 15, Paragraph 2, of the Public Functionaries Appointment Act is not applicable to the conduct of offering a bribe. J.Y. Interpretation No. 96, which held that the conduct of offering a bribe prescribed in Article 122, Paragraph 3, of the Criminal Code does not constitute an offense of malfeasance, is consistent with the substance of this Judicial Interpretation and shall therefore be upheld.  

*Translated by Li-Chih Lin, Esq., J.D.