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  • Interpretation
  • No.630
  • Date
  • 2007/07/13
  • Issue
    • Is Article 329 of the Criminal Code unconstitutional in providing for the crime of constructive robbery?
  • Holding
    •        Article 329 of the Criminal Code is intended to protect by means of criminal punishment the physical freedom, personal safety and property rights of the people against illegal infringement by others, so as to fulfill the purpose embodied in Articles 8, 15 and 22 of the Constitution. The reason that the lawmakers have only enumerated, with respect to the instantaneous use of violence and threat in the commission of larceny and forcible taking, the three specific incidents of defending the property taken, escaping arrest and destroying criminal evidence, which always lead to violence and threat, is to choose the situations of relatively higher degree of danger to the physical freedom and personal safety of the people to be deemed as an act of robbery and made liable to severe punishment. And the reason for larceny and forcible seizure committed under the forgoing circumstances being fictionalized as constructive robbery is because, in other property crimes, there is rarely any close relation between the act of property seizure and the act of violence or the threat in terms of time and place. Thus, the provision cited above does not go beyond the scope of the power of reasonable discretion of lawmakers and can hardly be considered to constitute any unreasonable discrimination for the same matter. To constitute the crime of constructive robbery under the provision, the acts of violence and the threats must have reached the degree of rendering resistance impossible. The statutory punishment is therefore the same as for the crime of robbery, and is not contrary to the doctrine of punishment commensurate with the crime; nor is it inconsistent with the essence of the principle of proportionality under Article 23 of the Constitution.
  • Reasoning
    •        The physical freedom, personal safety and property rights of the people are protected under Articles 8, 15 and 22 of the Constitution. The Criminal Code provides in Article 329 that “a person who commits larceny or forcible seizure of property of another and thereupon uses violence or threat to defend the property, evade arrest or destroy criminal evidence shall be punishable in the same manner as for the crime of robbery.” The statute is intended to protect by means of criminal punishment the physical freedom as well as personal and property safety of the people against illegal infringement by other persons, so as to fulfill the purpose embodied in the above Constitutional articles. The three objective and specific incidents of defending the property taken, evading arrest and destroying criminal evidence enumerated in the statute cited above are causes for which the actor often uses violence upon and threat against the victim or a third person at the time when larceny or forcible seizure of property is being committed. Therefore, the lawmakers have chosen to make the situations where violence and threat are used in such incidents punishable in the same manner as robbery for the purpose of protecting effectively the physical freedom as well as personal and property safety of the victim and third persons against illegal infringement. While persons who commit other property crimes may also use violence or threat to defend the property, evade arrest or destroy criminal evidence, there is rarely any close relation between the act of property seizure and the act of violence or threat in terms of time and place. Thus, the provision cited above does not go beyond the scope of the power of reasonable discretion of lawmakers and can hardly be considered to constitute any unreasonable discrimination for the same matter. 
      
    •        In the case of constructive robbery under Article 329 of the Criminal Code, the act of the person who commits larceny or forcible seizure of property of another and thereupon uses violence or threat to defend the property, evade arrest or destroy criminal evidence is deemed to be an act of robbery of seizing the property of another by the use of violence or threat that renders resistance impossible because the cause and effect between the act of forcible seizure and the act of using violence and threat in the crime of constructive robbery, albeit in an order opposite to the causal relation in the crime of robbery, are so closely related in terms of time and space that it is impossible to draw a clear-cut line of demarcation between the intent of larceny and forcible seizure and the intent to employ force and threat, which may thus be considered a compound single intent. In other words, the subjective unlawfulness of such an offender is hardly distinguishable from the subjective unlawfulness of the offender who commits robbery. Furthermore, despite that the act of forcible seizure is in an inverted order of the causal relation with the act of violence and threat, the damage it causes to the legal right to the property or body of the victim or the third person is no different from robbery in the objective view, and the act constitutes an objective unlawfulness susceptible to the same judgment. Therefore, the constituent elements for constructive robbery that are assumed by law to constitute the crime of robbery, although not explicitly requiring that the force and threat used immediately upon commission of larceny or forcible seizure must reach the degree of rendering it impossible for the victim or third person to resist as is so provided by Article 328 of the Criminal Code with respect to the crime of robbery, the objective unlawfulness of such an act is similar to the objective unlawfulness of the act of robbery and may be made liable to the same statutory punishment as robbery if force and threat are used immediately upon commission of larceny or forcible seizure to the extent of rendering it impossible for the victim or third person to resist. It follows that, where the application of Article 329 of the Criminal Code is not expanded to the situation of deceptive showing of force or momentary and minor body contact with the victim or the third person when committing larceny or forcible seizure, and consequently, instead of the crime of robbery which calls for severe punishment, the offense of larceny or forcible seizure which causes much less infringement upon the personal right is charged, it does not authorize severe penalty for such minor offenses and is not contrary to the doctrine of punishment commensurate with the crime; nor is it inconsistent with the essence of the principle of proportionality under Article 23 of the Constitution.
      
    • *Translated by Raymond T. Chu.
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