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Taiwanese International Mutual Assistance in Criminal Matters Act

  • News 2019/03/08
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The English version of the Taiwanese International Mutual Assistance in Criminal Matters Act is as follows.

 

Chapter 1 - General Provisions

Article 1

In order to reinforce international mutual assistance in criminal justice, to fight and prevent crimes in concert, and to safeguard human rights, on the basis of mutual respect and equality, this Act is thereby enacted.

 

Article 2

For international mutual assistance in criminal matters, treaties shall be applicable; Provided that there are no such treaties or there are no applicable provisions in such treaties, this Act shall be applicable; In case that this Act neither provides applicable provisions, then the Code of Criminal Procedure and other laws are applicable.

 

Article 3

The Ministry of Justice is the competent authority regarding this Act.

 

Article 4

For the purpose of this Act, terms used in this Act are defined as follows:

  1. International Mutual Assistance in Criminal Matters: Offer of or acceptance of offer of legal assistance between domestic and foreign government, foreign institution or international organization in connection with investigation, trial and enforcement in procedure of criminal justice and juvenile protection, except any sort of extradition, or transfer of convicts between countries.
  2. Requesting Party: Any foreign government, foreign institution or international organization that files a request for mutual assistance in criminal matters with our country.
  3. Requested Party: Any foreign government, foreign institution or international organization that receives a request for mutual assistance in criminal matters from our country.

Assisting Entity: Any prosecutor’s office or court commissioned by the Ministry of Justice with the implementation of the mutual assistance request, either directly or indirectly through the Judicial Yuan.

 

Article 5

Any assistance provided in accordance with this Act shall follow the principle of reciprocity.

 

Article 6

Types of mutual assistance allowed to offer or provide under this Act includes:

  1. Obtaining evidence.
  2. Service of process.
  3. Search.
  4. Seizure.
  5. Immobilization of assets.
  6. Execution of final and binding judgment or order of confiscation or forfeiture relating to an offense.
  7. Restitution of proceeds of crime.

Other types of assistance allowed in accordance with law of our country.

 

Chapter 2 - Request for mutual assistance filed by foreign government, foreign institution or international organization with our country.

 

Article 7

Any request for mutual assistance shall be filed with the Ministry of Foreign Affairs, which then relays it to the Ministry of Justice. But it may be filed directly with the Ministry of Justice in case of emergency.

 

Article 8

Any request for mutual assistance filed pursuant to the preceding article towards the Ministry of Justice via the Ministry of Foreign Affairs shall be in the form of a formal letter of request.

In case of emergency as specified in the proviso of the preceding article, a request may be filed in other forms with necessary exhibits attached. The Ministry of Justice may, after review, have it relayed or commissioned to an assisting entity to undertake any necessary interim measure with respect to the assistance requested. The requesting party shall still, within the next 30 days, file a formal letter of request with the Ministry of Foreign Affairs, or the Ministry of Justice may deny the request and order the assisting entity to revoke whatever interim measure it had undertaken.

The letter of request for mutual assistance as specified in the preceding paragraphs shall include all of the following information, with documentation or exhibits relevant to the execution of the request attached:

  1. Subject entity of the request and the entity in charge with the ongoing investigation, trial or enforcement.
  2. Purpose of the request.
  3. Criminal facts, offenses and evidence relating to the request. But this item does not apply to a request for service of process.
  4. Assistance requested and its reasons.
  5. Specific method, time limitation, and its reasons, of execution of the request.
  6. Any other detail required to be explained or recorded in accordance with this Act.

Provided that a request cannot be executed due to insufficient information, the Ministry of Foreign Affairs or the Ministry of Justice may require further explanations or supplemental exhibits from the requesting party.

The letter of request and its attachment shall be in Chinese or accompanied with Chinese translation certified as true and accurate translation of the original which was not written in Chinese. The Ministry of Justice may at its discretion consent to accept an attachment without Chinese translation or take non-Chinese translation instead.

 

Article 9

Once a request for mutual assistance is filed and received, the Ministry of Foreign Affairs shall relay it to the Ministry of Justice as soon as possible and may add annotation under one of the circumstances as specified in paragraphs 1 and 2 of Article 10.

Upon receiving the letter of request and approving it after review, the Ministry of Justice shall have it relayed or commissioned to an assisting entity suitable for the nature of the request.

 

Article 10

The Ministry of Justice shall deny assistance in one of the following circumstances:

  1. The provision of assistance jeopardizes our country’s sovereignty, national security, public order, international reputation or any other significant public interest.
  2. The provision of assistance jeopardizes an individual and may result in his/her punishment or any other detrimental measure because of his/her race, nationality, gender, religion, social class, or political ideals.

The Ministry of Justice may deny assistance in one of the following circumstances:

  1. The request does not comply with this Act.
  2. The provision of assistance violates the principle of reciprocity as specified in Article 5.
  3. The requesting party fails to provide any guarantees defined under Article 16, Paragraph 4 of Article 19, Article 20, or of reciprocity.
  4. The criminal facts described in the request do not constitute an offense in our country.
  5. The wrongdoings described by the request are in violation of martial law, instead of criminal law.
  6. The provision of assistance could constitute a hindrance to other ongoing investigation, prosecution, trial, enforcement or any other criminal proceeding in our country.
  7. The wrongdoings upon which the request is based have been reviewed and bound by a decision of Not-to-Prosecute, of Deferred Prosecution, or of Withdrawal of Prosecution, a judgment, or a ruling of Not-to-Hear-the-Case, of Not-to-Apply-Protective-Measures, or of Protective-Measures pursuant to Juvenile Delinquency Act, which is final and binding.

In one of the circumstances as specified in the preceding paragraphs, the Ministry of Justice may grant the request after the requesting party replenished it with necessary information or revised it as this Act requires.

 

Article 11

When several parties request for the same assistance and the execution of one might hinder the others, a decision of precedence shall be rendered by taking all of the following factors into account:

1.     The existence of a mutual assistance treaty in criminal matters between our two countries.

2.     The chronological order of the request filed.

3.     The nature of the request.

4.     The time needed for the execution of the request.

The situation and decision as specified in the preceding paragraph shall be forwarded to all involved parties.

 

Article 12

The execution of the request shall be conducted in conformity with law of our country; It may be conducted in the manner suggested by the requesting party as long as the manner is not in violation of the law of our country.

 

Article 13

The assisting entity has the power to review the request for all requirements by this Act and relevant laws. It may, via the Ministry of Justice, require the requesting party to replenish the request or notify the requesting party of its denial of request.

 

Article 14

Any information relating to the request and its execution shall be held confidential unless otherwise provided by law or agreement between the parties, or required by the execution of the request.

 

Article 15

The Ministry of Justice may require the requesting party to share the expenses incurred by the execution of the request.

 

Article 16

The Ministry of Justice may require the requesting party to guarantee that the evidence or information our country provided shall not be employed for any purpose other than the one stated in the letter of request, without our consent.

 

Article 17

When the requesting party requests for our assistance in questioning or interrogating an accused, witness, expert witness, or any other related persons, the pertinent facts, potential questions, and relevant elaboration shall be included in the letter of request.

The assisting entity may, by using equipments of audio-visual communication technologies, transmit the live situation of questioning or interrogation to the requesting party simultaneously.

If, during said transmission of the preceding paragraph, observers from the requesting party notice that some relevant and necessary points were not stated in the letter of request, they may ask for supplemental assistance immediately, and the assisting entity may conduct supplemental questioning or interrogation if it finds it admissible.

 

Article 18

Persons from the requesting party may conduct on-site observation on the execution of the request if the assisting entity finds it admissible.

In the situation of the preceding paragraph, if said person notice that some relevant and necessary points have not been stated in the letter of request when the assisting entity is conducting the questioning or interrogation, paragraph 3 of the preceding article shall apply.

 

Article 19

Our country may, when so requested by the requesting party, organize the travel of persons to some designated place out of our borders, in order to provide testimony, statement, expert testimony, or other assistance. The requesting party shall state clearly in the letter of request the expenses it shall bear and the time limitation of assistance.

Persons as defined in the preceding paragraph do not include the accused or suspect of the ongoing request or any person whose personal freedom or freedom of leaving from our country is currently restricted in accordance with law of our country.

The execution of the request as specified in paragraph 1 shall be conducted in conformity with the person’s own will without any compulsory force.

The requesting party shall guarantee the following in connection with the assisting persons:

  1. Unless there are prior consents from the Ministry of Justice and the assisting person, none may invoke that person’s actions before his/her entering the designated place, as the basis of his/her prosecution, detention, punishment, summoning, restriction from leaving the country, or any other form of limitation on his/her freedom of movement, nor he/she is obliged to provide testimony, statement, expert testimony, or other assistance with regard to matters other than the one requested.
  2. None may invoke that person’s refusal to appear, failure to appear, or refusal to state, after his/her entering the designated place, as the basis of his/her prosecution, detention, punishment, restriction from leaving the country, or any other detrimental measure upon that person.

 

Article 20

Our country may provide tangible evidence or exhibits according to the requesting party’s request. The Ministry of Justice may require the requesting party to guarantee that the evidence will be returned immediately after use or within designated period of time.

 

Article 21

A request for service of process shall include in the letter of request the following:

  1. Name, nationality, and any other information pertaining to his/her/its identity of the person to be served and of the person’s legal representative, proxy or manager.
  2. Address of the domicile, residency, office, workplace, or any other place suitable for the service of process, of the person to be served.

When the requesting party is unable to correctly locate the address of the person to be served, it may request for investigation of the correct address to be served simultaneously in the letter of request.

 

Article 22

The requesting party’s request for assistance as specified from paragraphs 3 through 7 of Article 6, or any other compulsory measure, is only admissible when pertinent wrongdoings, if committed with the territory of our country, do also constitute an offense.

 

Article 23

The requesting party may request for enforcement of final and binding judgment/ruling or order rendered by the court of the requesting party in connection with confiscation and forfeiture, provided that all of the following requirements are fulfilled:

  1. The findings of facts by said judgment/ruling or order do constitute an offense in accordance with the laws of both the requesting party and our country.
  2. The court of the requesting party has power of jurisdiction power over the matter.
  3. The statutes of limitations for the prosecution of crime and for the enforcement of confiscation and forfeiture have not expired in accordance with the laws of both the requesting party and our country.
  4. The court of the requesting party is a constitutionally independent power and said judgment/ruling or order was rendered in compliance with due process of law and impartiality.
  5. The judgment/ruling or order, and of which the whole procedure, do not constitute a violation of public order or good morals in our country.
  6. If a third party’s right is involved in the judgment/ruling or order, said party has been given sufficient opportunity to claim his/her/its right.

A request filed by the requesting party as specified in the preceding paragraph shall be attached with the judgment/ruling or order in original and relevant exhibits and include the following:

  1. That said judgment/ruling or order has become final and binding.
  2. That the wrongdoings involved do constitute an offense under the laws of the requesting party and that the statutes of limitations for the prosecution of crime and for the enforcement of confiscation and forfeiture have not expired.
  3. That the items 2, 4 and 6 of the preceding paragraph have been observed.
  4. The scope and location of the assets subject to enforcement.
  5. The name, date of birth, domicile, or residency of any third party who claimed his/her/its right over the assets subject to enforcement.

The statements as specified from items 1 through 3 of the preceding paragraph may take the form of a written declaration.

 

Article 24

Once the Ministry of Justice finds that the requesting party’s request as specified in the preceding article is legitimate and in conformity with this Act and other laws, it shall notify and relay the request to the competent prosecutors office so that the tasked prosecutor shall file a written petition with the competent court for a ruling permitting the enforcement, with documents in conformity with paragraph 1 of the preceding article attached.

If a third party then seeks to claim his/her/its right over the assets subject to the enforcement, the prosecutor shall notify the court as such.

 

Article 25

 I The petition as specified in paragraph 1 of the preceding article shall be ruled by the competent district court which has jurisdiction over the place where the person subject to the enforcement is domiciled, resides, or is located, or the place where the target property is located.

  II When multiple courts have jurisdiction over the same petition, then it may be filed with one of them. If the same petition has been filed with several such courts, then the one which received the petition first shall take the jurisdiction over the petition.

 III When dispute over jurisdiction among multiple courts arises, their immediate common superior court shall, by a ruling, determine and designate which court to take jurisdiction over the petition.

 IV Provided that jurisdiction cannot be determined by applying the preceding three paragraphs, then the jurisdiction goes to the district court in charge of the area where the central government is located.

 

Article 26

  I Before the court can render its ruling as specified in Paragraph 1 of Article 24, the person subject to the enforcement and the third party who seeks to claim his/her/its right as specified in Paragraph 2 of Article 24, shall be notified and given opportunities to present his/her/its arguments, not less than seven days before the hearing date, with the petition attached.

  II The person who received notification as specified in the preceding paragraph may retain an attorney to represent him/her/it in court, provided that the court considers it necessary, he/she/it may be ordered to appear in court in person.

  III The court shall notify the prosecutor that he may appear in court at the hearing date as specified in paragraph 1, so as to explain the reasons of the petition.

  IV Where the person as specified in paragraph 1 or his/her/its attorney default without due reasons after having been legally summoned or notified, a ruling may be made by the court without his/her/its statement.

 

Article 27

 I The court shall, by a ruling, overrule the petition as specified in Paragraph 1 of Article 24, if the petition does not comply with legal formality or it shall not be granted as a matter of law, or it is not supported by good reason; provided that where the deficiency in legal formality is amendable, the court shall order an amendment to be made within a prescribed period.

 II The court shall, by a ruling, grant the petition of the preceding paragraph and permit the enforcement, if the court determined that the petition is in conformity with Article 23. The laws of our country shall govern the scope of enforcement.

 III The tasked prosecutor, the person subject to the enforcement and the third party who seeks to claim his/her/its right over the assets subject to the enforcement may file interlocutory appeal against the court’s ruling as specified in the preceding two paragraphs.

  IV Provisions regarding interlocutory appeal, Part four of the Code of Criminal Procedure shall apply mutatis mutandis to the interlocutory appeal as specified in the preceding paragraph.

 V When a civil action has been undertaken by the third party who claims his/her/its right over the assets subject to the enforcement and the scope of the assets the future ruling of paragraph 2 is involved therefor is to be determined by the civil action, the court may, at its own discretion or upon request, render a ruling to suspend the trial of permitting the enforcement of ruling/judgment or order of confiscation or forfeiture before that civil action closes, except civil actions undertaken by the following parties:

  1. The person subject to the enforcement,
  2. Any third party that has already been given sufficient opportunity to claim his/her/its right as specified in Item 6 of Paragraph 1 of Article 23.

 

Article 28

Provisions regarding enforcement, Part 8 of the Code of Criminal Procedure shall apply mutatis mutandis to the enforcement of the ruling as specified in paragraph 2 of the preceding article.

 

Article 29

When it comes to the situations described under Articles 16 and 20 in which functions and duties of relevant governmental agencies are involved, the Ministry of Justice shall seek opinions from those agencies in advance.

 

Chapter 3 - Request for mutual assistance filed by our country with foreign government, foreign institution, or international organization.

Article 30

A request for mutual assistance in criminal matters filed with the requested party shall be in the form of letter of request with relevant exhibits attached in compliance with the legal formality required by the requested party and filed by the Ministry of Foreign Affairs on behalf of the Ministry of Justice. In case of emergency or special circumstances, the Ministry of Justice may file the request directly with the requested party, or the court may file the request directly with foreign court, foreign prosecutors office or any other foreign law enforcement authorities under the consent of the Ministry of Justice, with copies sent to the Ministry of Justice or competent prosecutors office.

 

Article 31

  I When we request for assistance in questioning or interrogating an accused, witness, expert witness, or any other related persons, from the requested party, we may, in compliance with law of the requested party, request for transmission of the live situation of questioning or interrogation to our country simultaneously, by using equipments of audio-visual communication technologies.

 II If, during said transmission of the preceding paragraph, we notice that some relevant and necessary points were not stated in the letter of request, we may ask for supplemental assistance immediately, and under the consent of the requested party, conduct supplemental questioning or interrogation.

 

Article 32

  I The Ministry of Justice may provide following guarantees when filing a request for mutual assistance in criminal matters:

  1. The principle of reciprocity will be observed.
  2. Unless under the consent of the requested party, the evidence or information obtained through the request shall not be employed for any investigation or litigation other than the purpose stated in the letter of request.
  3. Any other factor that does not violate the laws of our country.

  II All of our government agencies involved in the request shall be bound by the guarantees provided pursuant to the preceding paragraph and shall not breach them in any case.

  III The Ministry of Justice may, whenever the requested party requires it, grant the following immunities for person who comes to our country to provide his/her testimonies, statements or expert testimonies, or any other assistance:

  1. That he/she shall not be prosecuted, detained, punished, restricted from leaving the country or imposed upon with any other detrimental measure if he/she refuses to appear, fails to appear, or refuses to make statements after appearance.
  2. That he/she shall never be obliged to provide testimony, statement, expert testimony, or other assistance with regard to matters other than the one requested.
  3. That he/she shall not, due to his/her prior actions before entering our territory, be prosecuted, detained, punished, summoned, restricted from leaving the country or imposed upon with any other form of limitation on his/her freedom of movement.

 IV The immunities provided for according to the preceding paragraph shall expire fifteen days after we notify the requested party and that person that his/her presence is no longer required, or immediately upon his/her departure from our soil.

 

Chapter 4 - Additional Provisions

Article 33

 I Provided that a foreign government, foreign institution or international organization provides assistance in our successful confiscation or forfeiture of target assets relating to an offense, or that our country provides this very assistance in their successful confiscation or forfeiture of target assets relating to an offense, the Ministry of Justice may negotiate with the above parties to take all or share part of the target assets.

 II Prior to the restitution of target assets to a foreign government, foreign institution or international organization, costs and expenses incurred by the execution of assistance provided to the foreign government, foreign institution or international organization shall be deducted from the sum total of target assets, and rights of the legitimate right-holders and victims shall be properly protected in advance.

 

Article 34

 I Provided that there is reasonable basis to find that a foreigner is the right-holder entitled to request for restitution or payment of the target assets seized, confiscated, or forfeited, but such restitution or payment of said assets to the right-holder would be difficult or even impossible pursuant to the procedure dictated by the Code of Criminal Procedure, the Ministry of Justice may, upon the request of the right-holder’s government, based on the principle of reciprocity and treaties, agreements or protocols, that were concluded, negotiate on a case by case basis and deliver all or part of the seized, confiscated or forfeited assets to the right-holder’s government for further restitution or payment.

 II The request as specified in the preceding paragraph shall be filed within three years following the decision of Not-to-Prosecute, decision of Deferred Prosecution, or judgment became final and binding. If the defendants or related cases in connection with the seized, confiscated or forfeited assets are numerous, and each of those decisions of Not-to-Prosecute, decisions of Deferred Prosecution, or judgments has a specific date of becoming final and binding, the latest one shall be the starting point.

  III The delivery of seized, confiscated or forfeited assets, as specified in paragraph 1, shall be conducted by the competent prosecutor in charge of relevant cases.

 IV Once the seized, confiscated or forfeited assets are delivered to the right-holder’s government, pursuant to the preceding three paragraphs, the right-holder may no longer request for any sort of restitution or payment from our government.

 V For decisions of Not-to-Prosecute, decisions of Deferred Prosecution, or judgments that has become final and binding before this Act comes into effect, and related assets that were seized, confiscated or forfeited but not yet accrue to any national treasury account or to the national treasury, the date this Act comes into effect shall be the starting point of the limitation of time within which a foreign government may request for said delivery as specified in paragraph 2.

 

Article 35

  This Act shall apply mutatis mutandis to any request for mutual assistance in criminal matters between Taiwan and the People’s Republic of China with our Ministry of Justice and authorities of the People’s Republic of China as the competent authorities in charge.

 

Article 36

  This Act shall apply mutatis mutandis to any request for mutual assistance in criminal matters between Taiwan and Hong Kong or Macao with our Ministry of Justice, via Mainland Affairs Council of the Executive Yuan, and authorities of Hong Kong or Macao as the competent authorities in charge.

 

Article 37

  This Act is applicable to the pending cases of mutual assistance which have been granted and executed before this Act comes into effect.

 

Article 38

  This Act shall come into effect immediately on the date of promulgation.