Why Theft Is Not a Crime Subject to Private Prosecution

In criminal practice, it is common to see individuals driven by poor financial conditions and sudden hunger to steal low-value food items such as bento boxes, bread, or milk. Even more tragic cases involve young, impoverished parents stealing baby formula because they cannot afford to feed their infants. Furthermore, there are no shortage of defendants who repeatedly steal minor items due to mental disorders like obsessive-compulsive disorder or kleptomania, or who accidentally run afoul of the law by taking others' belongings due to a blurred concept of property rights.

However, under current law, property crimes such as theft—except for thefts among relatives—are not crimes subject to private prosecution. Therefore, as long as victims or shop owners report the case to the police, if they wish to forgive the defendant and choose not to press charges due to uncovering the truth, out of mercy, because the loss is minimal, or simply to avoid future trouble, they are often met with a police officer's remark: "Theft is a public prosecution offense!" The police will still insist on taking statements and transferring the case to the prosecutor's office.

Are They Really More Heinous Than Wiretapping?

Those who are lucky may encounter prosecutors willing to grant discretionary non-prosecution or suspension of prosecution based on the circumstances of the case. Those who are unlucky may be indicted or have a summary judgment requested without even attending a hearing. Such defendants may already be on the verge of extreme poverty, lacking even the bus fare to attend a court hearing. In the end, it is not uncommon for them to be detained or issued an arrest warrant as a result. Finally, defendants who have prior criminal records and are thus ineligible for suspended sentences, even if sentenced to relatively minor fines or short-term personal liberty restrictions (拘役), will mostly end up serving time in prison because they cannot afford the fines or commute them to labor.

Are these types of theft defendants really more heinous than those tough guys in the underworld who resort to violence and harm others' physical safety? Are they more heinous than defendants who intentionally seduce someone else's wife or husband, destroying the happiness of another family? Are they more heinous than those who intentionally destroy, dispose of, or conceal property to the detriment of creditors? Are they more heinous than hackers who intentionally intrude into others' computer equipment and obtain, delete, or alter data? Are they more heinous than those who wiretap or secretly record others' privacy and secrets?

If not, why does the law choose to protect legal interests such as "physical safety," "reputation," "privacy," "secrets," and "marital harmony" when they are infringed upon in other types of cases through the form of "offenses subject to private prosecution," allowing victims to use their own free will to decide whether to file or withdraw charges? Why must ordinary theft offenses involving the legal interest of victimized "property" be protected by such a powerful form as "offenses not subject to private prosecution"? If theft is treated this way, why are other property crimes—such as the common offenses of fraud, breach of trust, and embezzlement—any different?

Crimes of this nature often have unclear boundaries with simple civil disputes and breach of contract. Furthermore, because they are not offenses subject to private prosecution, "creditors" in practice frequently use the filing of criminal charges as a tactic of "using criminal pressure to compel civil settlements," turning the police, prosecutors, and courts into a legal debt-collection agency. Even if the two parties eventually reach a settlement during litigation, because the case cannot be withdrawn, hearings must still continue to clarify whether the aforementioned crimes were committed.

Helping the Underprivileged at the Bottom of Society

If these types of property crime cases could be comprehensively reclassified as "offenses subject to private prosecution"—or even better, if a comprehensive review were conducted to amend minor crimes that only infringe upon individual legal interests into offenses subject to private prosecution—it would significantly reduce the source of criminal cases. Aside from preventing wrongful convictions, encouraging settlements, and promoting restorative justice, this would also help underprivileged citizens at the economic bottom of society avoid frequently ending up as prison inmates. Furthermore, it could solve the problem of overcrowded prisons. Compared to short-sighted, stopgap legislative measures like sentence reductions, isn't this the long-term, fundamental remedy to solve the problem?