Article 128, Paragraph 1, of the Act of Negotiable Instruments stipulates that checks must be payable upon presentment, and any statements to the contrary shall be void. Therefore, checks are promises for payment with the important attribute of actual payment in the place of cash, and are vital instruments in transactions. Therefore Article 126 of the same Act expressly states that: "The drawer of a check shall guarantee payment of the sum of money specified on the check." In order to prevent the drawing of checks by drawers when there are insufficient funds, Article 141, Paragraph 2, of the same Act provides: "Where a person intentionally draws a check in an amount in excess of the funds remaining in the drawer*s account or to the drawer*s allowable credit with the drawee, and such check cannot be paid upon presentment by the bearer, the drawer is liable to imprisonment for a term of less than three years and detention and/or a fine not exceeding the unpaid amount of said check." This criminal punishment seeks to ensure negotiability of checks and their actual payability and to maintain secure transactions.
For checks which bear a date after the date of issue, Article 128, Paragraph 2, of the Act of Negotiable Instruments stipulates that: "A bearer of a check shall not present the check for payment prior to its stated date." The issuing of a check prior to its stated date does not prohibit its negotiability. This is the nature of a check which is not entirely comparable with "payment upon presentment" under Paragraph 1 of the same Article. But for the purposes of securing the said check*s payability, if there are not sufficient funds in the account to cover a post-dated check on the stated date for payment, criminal punishment under Article 141, Paragraph 2, of the same Act shall be equally applicable. However, the adoption of criminal punishment as a means to ensure a check*s negotiability can easily lead the bearer to overlook the drawer*s credibility when receiving the check. Since the commencement of its operation, it has been used to improperly extend credit. However, the question lies in the appropriateness of the provision, and is within the legislature*s authority to determine. It does not contravene Articles 15 and 22 of the Constitution.
In addition, although a check is an unconditional instrument, its drawer may still use it as evidence against the bearer when there is a dispute between the parties. Should a drawer allege the existence of a fact in dispute which causes non-payment of a check and the criminal court, without investigating the existence of criminal intention in relation to the fact in dispute as required by Article 141, Paragraph 2, of the Act of Negotiable Instruments, imposes criminal punishment under the said provision, the question is one concerning the appropriateness of the judgment and is irrelevant to the constitutionality of the said provision.
*Translated by Wei-Feng Huang of THY Taiwan International Law Offices.