【Legal Life】Ch7 Suspension of Prosecution, I Choose You!

Although Ch'un-ming was ultimately not detained by the court, after discussing the matter with his lawyer, he realized that while the charge of hit-and-run might not hold up, he would still be guilty of negligent homicide for causing the grandmother's death. Facing what seemed like inevitable imprisonment, his lawyer suggested that he could try to seek a "suspension of prosecution" to avoid jail time, giving Ch'un-ming a glimmer of hope...

What is a suspension of prosecution? Can you eat it?

When a prosecutor handles a minor offense and believes that any of the following circumstances apply:

1. Prosecuting the case would be a waste of state resources.
2. The defendant has not committed a heinous crime such as murder or arson.
3. The defendant usually has good moral character—helps old ladies cross the street, and has a good attitude after committing the offense.
4. Other similar reasons.

And deems that prosecution is not strictly necessary, the prosecutor may issue a "disposition of suspension of prosecution" against the defendant. This means temporarily not prosecuting the case. Additionally, the prosecutor can require the defendant to complete tasks specified by the prosecutor within a certain period.

As long as the defendant behaves and dutifully completes the prosecutor's required tasks during this period, once the time expires, the prosecutor will not prosecute the case, and the defendant will not be subjected to criminal punishment.

What conditions must be met for a suspension of prosecution?

According to the former part of Paragraph 1, Article 253-1 of the Code of Criminal Procedure, the conditions for a suspension of prosecution are:

The offense committed by the defendant is punishable by neither death, life imprisonment, nor imprisonment for a minimum term of three years or more.

The crime committed by the defendant must be a minor offense other than one punishable by "death, life imprisonment, or imprisonment for a minimum term of three years or more" for the prosecutor to even have the discretion to consider a suspension of prosecution.

Taking into consideration the matters listed in Article 57 of the Criminal Code and the maintenance of the public interest, if the prosecutor deems a suspension of prosecution to be appropriate, they may determine a suspension period of not less than one year and not more than three years for the disposition of suspension of prosecution.

Next, the prosecutor must also consider the "public interest" and the various circumstances stipulated in Article 57 of the Criminal Code (such as the method of the defendant's crime, the defendant's character, the damage caused by the crime, etc.).

If, based on the aforementioned factors, the prosecutor feels that granting a suspension of prosecution is a better choice for the defendant and that there is no need to send the defendant to prison to learn the latest criminal techniques, the prosecutor can set a "suspension period" of one to three years and issue a "disposition of suspension of prosecution" against the defendant.

Wait, a suspension period of one to three years? What is the defendant supposed to do during this time?

Naturally, during the suspension period, the defendant must not commit any crimes (obviously). Furthermore, pursuant to Paragraph 1, Article 253-2 of the Code of Criminal Procedure, the prosecutor can freely mix and match from the following eight tasks and require the defendant to fulfill or comply with them:

1. Apologize to the victim.
2. Write several statements of remorse.
3. Pay compensation for the victim's losses.
4. Pay a sum of money to the national treasury, which may be allocated to designated local self-governing bodies or public welfare organizations.
5. Perform 40 to 240 hours of voluntary community service at agencies, organizations, or groups designated by the prosecutors office.
6. Complete addiction treatment, psychiatric treatment, psychological counseling, or other appropriate treatment measures.
7. Obey necessary orders to protect the victim's safety.
8. Obey necessary orders to prevent reoffending.

Oh, so that counts as a suspension of prosecution?

As long as the defendant behaves and commits no further crimes during the suspension period, and completes the tasks designated by the prosecutor, then once the suspension period expires without being revoked, the prosecutor generally cannot prosecute the same crime again. Moreover, because the prosecutor did not formally prosecute a suspended case, the defendant naturally will not acquire a criminal record. No big deal at all (though your prior record report at judicial authorities will still show that you once received a suspension of prosecution).

Wait, did you mention "revocation"? Is that a thing?

Yes, ladies and gentlemen, if any of the following events occur during the suspension period, the prosecutor may, pursuant to Paragraph 1, Article 253-3 of the Code of Criminal Procedure, revoke the disposition of suspension of prosecution and resume investigation or prosecution:

1. The defendant intentionally commits a crime punishable by imprisonment or heavier during the suspension period and is prosecuted by the prosecutor. In other words, if it is a negligent crime (such as accidentally hitting someone while playing Pokémon GO while driving), or if the crime committed is not punishable by imprisonment (such as the offense of gambling under Article 266 of the Criminal Code, which is only punishable by a fine of up to 1,000 NTD), or even if it does not fit the first two types but the prosecutor does not institute a prosecution, it is still fine.
2. The defendant intentionally committed another crime prior to the suspension of prosecution, and as ill luck would have it, was sentenced to imprisonment or heavier during the suspension period.
3. Violating any of the items under Paragraph 1, Article 253-2 of the Code of Criminal Procedure—meaning failing to finish the tasks assigned by the prosecutor as mentioned earlier.

If my suspension of prosecution is revoked, can I get a "QQ" (sympathy) from you?

Don't rush to despair just yet; there are still legal remedies available if your suspension of prosecution is revoked: According to Article 256-1 of the Code of Criminal Procedure, after receiving the written disposition revoking the suspension of prosecution, the defendant may, within seven days, submit a written statement of the reasons for dissent and apply for a re-appeal through the original prosecutor to the Chief Prosecutor of the directly superior court prosecutors office or the Prosecutor-General.

Re-appeal? How could I not care about this?

After a defendant applies for a re-appeal pursuant to Article 256-1 of the Code of Criminal Procedure due to dissatisfaction with the prosecutor's disposition to "revoke the suspension of prosecution," if the original prosecutor agrees with the defendant's reasons for re-appeal—known as a "well-founded re-appeal"—the prosecutor shall revoke the original disposition revoking the suspension of prosecution in accordance with Paragraph 1, Article 257 of the Code of Criminal Procedure.

If the original prosecutor feels that the defendant's arguments for re-appeal are groundless—known as an "unfounded re-appeal"—they must, pursuant to Paragraph 2, Article 257 of the Code of Criminal Procedure, transfer the case to the "Chief Prosecutor of the higher court prosecutors office" or the "Prosecutor-General."

Subsequently, if the Chief Prosecutor (or Prosecutor-General) shares the same view as the original prosecutor and also deems the re-appeal "unfounded," they must dismiss the re-appeal pursuant to Article 258 of the Code of Criminal Procedure, and it's truly GG (game over). Conversely, if they consider the re-appeal "well-founded," they must revoke the original disposition revoking the suspension of prosecution in accordance with the same article.

Aside

Although the ultimate effect of a suspension of prosecution is similar to a disposition of non-prosecution, But (and this is the most important "But" in life), the defendant must comply with or fulfill the prosecutor's orders during the one-to-three-year suspension period, which constitutes a certain degree of infringement upon their rights. Moreover, a disposition of suspension of prosecution also signifies the existence of criminal facts (albeit minor ones).
Therefore, if you are firmly convinced of your innocence, you must actively defend your rights and not be easily sweet-talked into accepting a suspension of prosecution.

Legal Basis

Article 57 of the Criminal Code: The determination of punishment shall be based on the culpability of the offender and shall take all circumstances into consideration, with particular attention paid to the following matters as standards for the severity of the punishment:
1. The motive and purpose of the crime.
2. The provocation suffered at the time of the crime.
3. The means used in the crime.
4. The living conditions of the offender.
5. The character of the offender.
6. The level of education and intelligence of the offender.
7. The relationship between the offender and the victim.
8. The degree of the offender's breach of duty.
9. The danger or damage generated by the crime.
10. The attitude of the offender after the crime.

Suspension of Prosecution

• 《Code of Criminal Procedure》Paragraph 1, Article 253-1:
  I. Where an offense committed by a defendant is punishable by neither death, life imprisonment, nor imprisonment for a minimum term of three years or more, the prosecutor may, taking into consideration the matters listed in Article 57 of the Criminal Code and the maintenance of the public interest, deem a suspension of prosecution to be appropriate and thereby determine a suspension period of not less than one year and not more than three years for the disposition of suspension of prosecution. Such a period shall be calculated from the date on which the disposition of suspension of prosecution becomes final.
  II. The statute of limitations for the right of prosecution shall be suspended during the period of suspension of prosecution.
  III. The provisions of Paragraph 3, Article 83 of the Criminal Code shall not apply to the causes of suspension referred to in the preceding paragraph.
  IV. The proviso of Paragraph 1, Article 323 of the Code shall not apply during the period of suspension of prosecution.
• 《Code of Criminal Procedure》Article 253-2:
  I. A prosecutor issuing a disposition of suspension of prosecution may order the defendant to comply with or fulfill the following matters within a certain period:
  1. Apologize to the victim.
  2. Draw up a statement of remorse.
  3. Make property or non-property damage compensation of a corresponding amount to the victim.
  4. Pay a certain amount of money to the national treasury, and the competent prosecutors office may, in accordance with regulations, allocate a certain percentage thereof to subsidize relevant public welfare organizations or local self-governing bodies.
  5. Provide compulsory community service for not less than 40 hours and not more than 240 hours to government agencies, government institutions, administrative corporations, communities, or other institutions or organizations conforming to public welfare purposes as designated by the competent prosecutors office.
  6. Complete addiction treatment, psychiatric treatment, psychological counseling, or other appropriate treatment measures.
  7. Necessary orders to protect the safety of the victim.
  8. Necessary orders to prevent reoffending.
  II. A prosecutor ordering a defendant to comply with or fulfill the matters set forth in Items 3 to 6 of the preceding paragraph shall obtain the consent of the defendant; Items 3 and 4 may further serve as an execution title for civil compulsory execution.
  III. The circumstances referred to in Paragraph 1 shall be appended to the written disposition of suspension of prosecution.
  IV. The period referred to in Paragraph 1 shall not exceed the period of suspension of prosecution.
  V. Regulations governing the allocation percentage, revenue and expenditure utilization, and supervision and management of Subparagraph 4 of Paragraph 1 shall be jointly prescribed by the Executive Yuan and the Judicial Yuan.
• 《Code of Criminal Procedure》Article 253-3
  I. Where a defendant falls under any of the following circumstances during the period of suspension of prosecution, the prosecutor may, ex officio or upon the application of the private prosecutor, revoke the original disposition and resume investigation or prosecution:
  1. Intentionally committing an offense punishable by imprisonment or heavier during the period, and being prosecuted by the prosecutor.
  2. Having intentionally committed another crime prior to the suspension of prosecution, and being sentenced to imprisonment or heavier during the period of suspension of prosecution.
  3. Violating the matters to be complied with or fulfilled under Items 1 through 8 of Paragraph 1, Article 253-2.
  II. When a prosecutor revokes a disposition of suspension of prosecution, the defendant may not request the return or compensation of the part already fulfilled.
• 《Code of Criminal Procedure》Article 255
  I. A prosecutor who renders a disposition of non-prosecution, suspension of prosecution, revocation of suspension of prosecution, or non-prosecution based on other statutory reasons pursuant to the provisions of Articles 252, 253, 253-1, 253-3, or 254 shall draft a written disposition stating the reasons therefor. However, if the private prosecutor or denouncer consented thereto prior to the disposition, the written disposition may merely record the gist of the disposition.
  II. Originals of the written disposition referred to in the preceding paragraph shall be served upon the private prosecutor, denouncer, defendant, and defense counsel. The written disposition of suspension of prosecution shall also be served upon the victim, agency, organization, or community related to the acts of compliance or fulfillment.
  III. The service referred to in the preceding paragraph shall not exceed five days from the date the clerk receives the original written disposition.
• 《Code of Criminal Procedure》Article 256-1
  I. After receiving the written disposition revoking the suspension of prosecution, the defendant may, within seven days, submit a written statement of the reasons for dissent and apply for a re-appeal through the original prosecutor to the Chief Prosecutor of the directly superior court prosecutors office or the Prosecutor-General.
  II. The provisions of Paragraph 2 of the preceding article shall apply mutatis mutandis to the written disposition revoking the suspension of prosecution served upon the defendant.
• 《Code of Criminal Procedure》Paragraph 2, Article 256
  I. After receiving the written disposition of non-prosecution or suspension of prosecution, the private prosecutor may, within seven days, submit a written statement of the reasons for dissent and apply for a re-appeal through the original prosecutor to the Chief Prosecutor of the directly superior court prosecutors office or the Prosecutor-General. However, if the private prosecutor consented to the dispositions under Article 253 or Article 253-1, no re-appeal may be applied for.
  II. Where a disposition of non-prosecution or suspension of prosecution is subject to application for re-appeal, the re-appeal period and the Chief Prosecutor of the directly superior court prosecutors office or the Prosecutor-General to whom the re-appeal is applied shall be recorded in the original copy of the written disposition served upon the private prosecutor.
  III. In cases of offenses punishable by death, life imprisonment, or imprisonment for a minimum term of three years or more where a prosecutor renders a disposition of non-prosecution due to insufficient incriminating evidence, or in cases under Article 253-1 where a prosecutor renders a disposition of suspension of prosecution, if there is no person eligible to apply for a re-appeal, the original prosecutor shall ex officio directly submit the case for re-appeal to the Chief Prosecutor of the directly superior court prosecutors office or the Prosecutor-General, and notify the denouncer.
• 《Code of Criminal Procedure》Article 257
  I. If the original prosecutor considers an application for re-appeal to be well-founded, they shall revoke the disposition and, except in cases referred to in the preceding article, resume investigation or prosecution.
  II. If the original prosecutor considers the application to be unfounded, they shall immediately forward the case file and evidence to the Chief Prosecutor of the higher court prosecutors office or the Prosecutor-General.
  III. If the application has exceeded the periods prescribed in the preceding two articles, it shall be dismissed.
  IV. When the Chief Prosecutor of the original court prosecutors office deems it necessary, prior to forwarding pursuant to the provisions of Paragraph 2, they may personally conduct or order another prosecutor to reinvestigate or review, and respectively revoke or uphold the original disposition; if they uphold the original disposition, they shall immediately forward the case.
• 《Code of Criminal Procedure》Article 258
  If the Chief Prosecutor of the higher court prosecutors office or the Prosecutor-General considers the re-appeal to be unfounded, they shall dismiss it; if they consider it well-founded, they shall revoke the original disposition in the circumstances of Article 256-1, and in the circumstances of Article 256, respectively render the following dispositions:
  1. Where the investigation is incomplete, they may personally conduct or order another prosecutor to reinvestigate, or order the prosecutor of the original court prosecutors office to continue the investigation.
  2. Where the investigation is complete, they order the prosecutor of the original court prosecutors office to prosecute.