there is no need to deduct the obligation to return principals and interests pursuant to relevant contracts (Taiwan)
Article 29, Paragraph 1 of the Banking Law provides: "Unless otherwise provided by law, any organization other than a bank shall not accept deposits, manage trust funds or public property under mandate or handle domestic or foreign remittances." Article 125, Paragraph 1 of the same law regulates the criminal liabilities for any violation of Article 29 by stipulating: "Those who violate Article 29, Paragraph 1, of this Law shall be punished by imprisonment for not less than three (3) years and not more than ten (10) years, and may be fined a criminal fine of not less than Ten Million New Taiwan Dollars (NT$10,000,000) and not more than Two Hundred Million New Taiwan Dollars (NT$200,000,000). Those who thereby obtain criminal proceeds in excess of One Hundred Million New Taiwan Dollars (NT$100,000,000) or more shall be punished by imprisonment for seven (7) years or more, and may also be fined a criminal fine of not less than Twenty Five Million New Taiwan Dollars (NT$25,000,000) and not more than Five Hundred Million New Taiwan Dollars (NT$500,000,000)." Regarding how to calculate the "criminal proceeds," which involve intensified criminal liabilities, the Supreme Court rendered the 103-Tai-Shang-2143 Criminal Decision of June 26, 2014 (hereinafter, the "Decision"), holding that such criminal proceeds refer to the total amount of funds illegally absorbed by crime perpetrators and are not required to be deducted even if the crime perpetrators are obligated to return principals and interests under relevant contracts.
In the facts underlying the Decision, the appellants solicited investment from nonspecific public in the Hui Chi Group in the name of the Mutual Assistance Association for Central Taiwan and the Hui Chi Lung Cheng Membership Program and jointly operated illegal banking business. They absorbed funds totaling NT$2.7 billion and had been subject to the criminal penalties imposed in the decision of the original trial court for their violation of the requirement that a nonbanking entity shall not operate the business of accepting deposits and for their proceeds in excess of NT$100 million.
It was pointed out in the Decision that the last part of Article 125, Paragraph 1 of the Banking Law regards "criminal proceeds in excess of NT$100 million" as a condition for intensified penalties on the ground that the higher criminal proceeds, the greater the negative impact on the financial order of society. Therefore, with respect to such fund-absorbing acts, when crime perpetrators illegally absorb funds from other parties, the offense has been committed and its establishment is not affected by the subsequent return of such funds by the crime perpetrators. Thus, the "criminal proceeds" referred to in the last part of this article certainly refer to the aggregate of the funds obtained through illegal absorption the crime perpetrators participate in. Even though the crime perpetrators are obligated to return the principals and interests pursuant to relevant contracts, the criminal proceeds should not be deducted in order to reflect the legislative objectives of the above provisions. Based on the foregoing reasons, it was held in the Decision that the appellants' assertions regarding the preconditions for intensified criminal penalties, the calculation of the "criminal proceeds," which are subject to forfeiture, and the forfeiture of the criminal proceeds are all groundless and are not legally appropriate reasons for appeal to the third instance court. Therefore, the appeal of such individuals was rejected.