Analyzing different standards in the prosecution of the cases of public officer's special responsibility allowance

• Main Authors: Hsin-YiHou, 侯信逸
• Other Authors: Chia-Wen Lee
• Format: Others
• Language: zh-TW
• Published: 2017
• Online Access: http://ndltd.ncl.edu.tw/handle/f9d3qq

碩士 === 國立成功大學 === 法律學系 === 105 === This dissertation discussing the rulings of the district prosecutors on Public Officer's special responsibility allowance reveals that the discrepancies among the rulings result from a long term administrative practice without regulation for about forty years. On one hand, Public Officer's special responsibility allowance is required to use in public affairs, but on the other hand ,according to explainattion of administrative rules , up to half of the expenditures of the funds called secret funds could be apllied by official substitutes receipts for original certificates if the chief executives actually spend the funds. However, the real world practice of Public Office’s special allowance substantially become subsides of chief executives as a reslut of long-term implementation of being interpreted loosely. On Nov. 30th, 2006, the Ministry of Justice proposed a legal opinion indicating that Public Officer's special responsibility allowance is a kind of functional expenses that government compiles budget for public affairs but with the feature of substantial subsidies which has become an administrative practice after development in decades. However, Prosecutor of the High Court Public Prosecutor’s Anti-corruption Center did not adopt that opinion. Prosecutor-General of the Supreme Prosecutors Office did not timely hold the meeting of chief prosecutors of district offices to have an uinform standard to settle the legal disputes. As a result, this circumstance caused Taipei District Prosecutes Office ruled to indict Ma Ying-jeou, but Tainan District Prosecutors Office ruled not to indict Hsu Tain-Tsair. However, both mayors had the same behavior to write off expenditures by official substitutes receipts for original certificates . The discrepant rulings formed the image that the prosecutors adopted different treatments to different party’s politicians and ruined the prestige of judiciary from publics. Comparing the above indictment of Ma Ying-jeou, the above non-indictment of Hsu Tain-Tsair, the indictment of Annette Lu in another chief executives’ special allowance case, and the non-indictment of Ma Ying-jeou in another chief executives’ special allowance case, we found the discrepancies of threshold to indict on c Public Office’s special allowance. Most chief executives, though, investigated and indicted were the members of DPP, it was the consequences that the prosecutors had the convenience to access the evidences of the ruling party DPP which was in power for eight years then. However, there is no evidence to conclude that prosecutors had a preference to indict or not just because of the identity prosecuted. We believe that the discrepancy resulted from the dysfunction of Prosecutor in One Identity and result from the rising of prosecutor power suppressed for a long time. Taiwan sprouted the environment of rule by laws 20 years ago. Prosecutors excessively emphasized the independence of prosecution and caused the atmosphere of individualism. Under this circumstance, chief prosecutors did not want to interfere in the prosecution of prosecutors, and caused the chief prosecutors could not regulate the prosecutors. It has made the public question the rulings of prosecutors that some prosecutor did not obey restriction on the principle of “prosecutors in one identity law”, or due to too low threshold of indictment to convince the court. Besides, it is the long-term problems in the system of prosecutors that both low threshold and insufficient evidences presented resulted from the misunderstanding of the spirit of strong suspect of having committed an offense punishable stipulated in laws. Besides, prosecutors could get the support of the public if they investigated a case toward indictment. However, prosecutors did not need to take any accountability if the indicted cases were resulted in an acquittal. Under this circumstance, prosecutors had the incentive to indict. In addition, the imperfect framework of Public Office’s special allowance, the practice of Public Office’s special allowance, and the discrepant opinions among prosecutors encouraged the prosecutors to indict the case of chief executives’ special allowances without sufficient evidences. In view of the indictment of Public Office’s special allowance, we suggest to enact the practice to make district chief prosecutors to settle the discrepant opinions through the system of prosecutors in one identity. Besides, prosecutors should raise the threshold of indict to only indict those with enough evidences sufficient to persuade the judges to give a verdict of guilty. In addition, request the prosecutors to write a review against some specific cases if those indicted cases were resulted in an acquittal to reduce the hasty attitude. It is a feasible suggestion that Ministry of Justice plan to present an specification to implement the prosecutors’ accountability system in National Conference on Judicial Reform in 2017.