|
In determining whether a civil servant commits an offense of negligent release of a person in his custody under Article 163(2) of the Criminal Code, the central inquiry is whether the person of his supervision and delivery duty is “a person legally arrested or detained.” “A person arrested or detained,” as referred to in Article 8 of the Constitution, is distinguished in its nature into the criminal defendant and non-criminal defendant, on whom purpose, manner, and extent of imposing restrictions on their freedom shall be distinguishable. And the scrutiny level for the legal procedures practiced or due process of law shall also be different. In the case of "mandatory isolation," the purpose of detention is to protect people's safety and health, and "administrative detention" to secure the execution of the deportation ruling. Both are fundamentally different from criminal punishment. It is not necessary to adopt strict scrutiny as criminal punishment does when restricting personal freedom. It is unreasonable that "a person legally arrested or detained" as an element of the criminal offense of escape, ranges from civil, criminal, to administrative, all are punishable. After all, restraining the freedom of a criminal defendant and a non-criminal defendant are different in nature and manner. Detention decision, for instance, is an administrative protection measure, which is essentially an administrative disposition and is not punitive as criminal custody or imprisonment, and shall not be treated the same in terms of accountability. Legislators should weigh in the illegality of the illegal act, and impose the appropriate punishment and corresponding liability. Therefore, it is necessary to review the traditional judicial practices that whether a person is a criminal defendant, he shall be punished for the offense of escape, and the civil servant in charge of his supervision or delivery shall be punished for the offense of negligent release. Moreover, scholars of human rights groups in recent years have cited the human rights Covenant demanding to reduce the intensity of management in administrative detention to protect the human rights of the detainee. Little do they know that the unreasonable management results from the unreasonable application of the offense of escape from the Criminal Code. The study intends to analytically compare the management intensity of the supervisory authority for the criminal defendant and non-criminal defendant, their supervision facilities, and security equipment. It then observes criminal regulations of Germany, Japan, France, Italy, and the People's Republic of China from a comparative law perspective, which leads to a finding that even where the negligent release is punishable, the behavioral object is confined to a criminal suspect, defendant, or the arrested or detained. The behavioral object of the offense of escape in our Criminal Code applies to criminal, civil, and administrative detainees indiscriminately, which is the most extensive of all the countries. The study also conducts empirical research that collects 26 cases of escape dating from January 2, 2007, when the Ministry of the Interior National Immigration Agency established, to December 31, 2018. None of these cases underwent criminal litigation proceedings; instead, the cases resolved during the prosecutorial investigation, and either a deferral prosecution decision or a non-prosecutorial decision was rendered — the punishment resorts mainly to a disciplinary disposition. The judicial practices have generally formed a consensus that such litigation may be excluded from criminal law, or alternative legal consequences may replace criminal penalties. Therefore, it is necessary to re-clarify the scope of its reference in Article 163, paragraph 2 of the Criminal Code. The study is based on 1.The fundamental rights perspective: distinguishing arrested detainees into criminal defendants and non-criminal defendants; 2.Comparative law perspective: reviewing criminal codes of Germany, Japan, France, Italy, and PRC, only our Criminal Code punishes the non-criminal defendant for the offense of escape, which is the most extensive of all the countries; 3.Empirical research: the judicial practices have generally formed a consensus that the offense of negligent release may be excluded from the Criminal Code, or alternative legal consequences may replace criminal penalties.. 4.Views on the nature of regulatory authorities: management intensity, supervision facilities, and security equipment of the supervision authorities vary. From the above points of view, the research hopes to shed new light on the nature and purpose of administrative detention, the suitability of its inclusion in the offense of escape of Criminal Code, and the necessity to hold civil servants accountable for negligently setting free a person in his custody.
|