The Supreme Court rendered the 104-Tai-Shang-373 Criminal Decision of February 5, 2015 (hereinafter, the "Decision"), holding that the property that shall be disgorged, additionally expropriated or used in lieu thereof under Article 10 of the Anti-corruption Statute shall be limited to the property of the offender himself or of his accomplices.
According to the facts underlying this Decision, it was determined in the original decision that Defendant Yu-kuan Wu, previously the Director of the Training and Employment Center of the Labor Department of Kaohsiung City Government, and Yi-long Tsai, the other Defendant in this case who was an associate trainer, jointly organized an admission examination for government-funded orientation training. They both falsified the scores so that specific examinees were admitted and jointly enriched ten individuals such as Hsiu-tao Li who simply benefitted, without providing corresponding services, from illegal gains such as the tuition and miscellaneous fees, labor insurance premiums and learning material cost paid by the Labor Department of Kaohsiung City Government. The Defendants were also informed to disgorge their illegal gains. Dissatisfied, the Defendants appealed to the Supreme Court.
Article 10 of the Anti-corruption Statute provides: "The property obtained by committing the offenses under Articles 4 through 6 shall be disgorged and shall be forfeited or returned to the victim, depending on the circumstances. If offenses under Articles 4 through 6 are committed, property obtained by the offenders, their spouses or underage children upon commission of the offenses and three years thereafter shall be deemed property obtained from the commission of the offenses if the offenders are required by the prosecution or court during investigation or trial procedures to substantiate the legitimacy of the sources but fail to comply. If the entirety or a part of the property in the preceding two paragraphs cannot be disgorged, equivalent value should be expropriated or other property should be used in lieu thereof. To secure the disgorgement, expropriation of value or use of property in lieu thereof as set forth in the preceding three paragraphs, certain amount of the offenders' property may be seized, if necessary."
According to the Decision, the property that shall be disgorged or given back to the victim under Article 10 of the Anti-corruption Statute should be limited to "obtained property" and does not include "unjust (or illegal) gains." Therefore, the main text of the original decision indicated that "the obtained property" shall be disgorged and returned to the victim, even though such property in fact was found to be "illegal gains." As a result, the main text as proclaimed was not appropriate to the facts found in the decision, causing violation of laws and regulations due to contradictions in a decision. Therefore, the original decision was reversed and remanded.
According to the opinion reflected in this Decision, since the illegal gains received by a third party due to the commission of the offense under Article 6, Subparagraph 4 of the Anti-corruption Law are not the "obtained property" under Article 10 of the Anti-corruption Law, an actor is not obligated to disgorge and return such illegal gains to the victim.