Inspiration from Germany for Taiwanese criminal law

Professor Chih-Jen Hsueh has been teaching and researching criminal law and criminal procedure law at the College of Law at National Taiwan University in Taipei since 2013. He received his doctorate from the University of Tübingen in 2010. His research focuses on constitutional and human rights issues in criminal law and criminal procedure law. During his stay in Passau in July and August 2024, he will be researching at the Chair of German, European and International Criminal Law, Criminal Procedure and White-Collar Crime held by Professor Robert Esser.

Professor Robert Esser from the University of Passau with his Taiwanese guest Professor Chih-Jen Hsueh. Photo: Lena Nerb

What motivated you to make the long journey from Taipei to Passau?

My first visit to Passau took place a year ago, in July 2023, on the occasion of the 8th German-Taiwanese Criminal Law Forum. The old town was so colourful and attractive that I decided to visit Passau a second time. Thanks in part to the support of the research centre “Human Rights in Criminal Proceedings” (HRCP), I am now able to conduct a research stay in Passau.

My host, Professor Esser, and I have established a close academic cooperation through the criminal law forum that connects us. We are both intensively involved in the regulation of the prohibition of police incitement and the use of informants in criminal proceedings. As part of my research project at the University of Passau, I am focussing on the implementation of the rule of law, as formulated by the case law of the European Court of Human Rights in Strasbourg, and the respective legal policy perspectives on the topic in both countries.

What is your research project at the University of Passau about? What do you hope to gain from your stay here?

I asked myself the question of whether the legislature in Taiwan needs to regulate the incitement of offences by state authorities as an investigative measure in criminal proceedings. In Taiwan, incitement is used by the police primarily in cases where it is difficult to prove the commission of an offence using typical and overt investigative measures. The most common form of crime incitement is the feigned purchase of narcotics on the street or rhino horn powder in traditional Chinese medicine pharmacies. The admissibility of police incitement has so far remained unregulated by statute, its limits are only determined by case law. I personally consider this legal situation to be constitutionally problematic, because behaviour provoking an offence encroaches significantly on the fundamental rights of the person concerned. The regulation of the requirements and limits of police incitement by the legislator is therefore required by the rule of law.

In March 2024, the German federal government introduced a draft law into Parliament that aims to define the use of police informant and the legal limits of police incitement. I would like to be inspired by this current legal development and the legal policy debate in Germany in order to subsequently develop my own regulatory concept for the Taiwanese Code of Criminal Procedure.

Who is appointed as a trusted person in Taiwan's political system? For what purposes? How is this currently regulated by law?

The term “police informant” is not regulated in Taiwan's Code of Criminal Procedure. In contrast, the (preventive) use of confidential informants is expressly standardised in the Taiwan`s Police Powers Act. If it is feared that someone may violate public safety, public order, life, limb, freedom, honour or property of another person or commit another criminal offence, the Chief of Police may deploy a private person as an informant for the purpose of averting danger or preventing criminal offences. However, this regulation cannot be applied in the area of repressive criminal prosecution. There are no precise guidelines in the Police Authorisation Act on the question of who may be deployed as an informant. Official reports from police practice are also not available. It can therefore only be assumed that the private individuals selected as informants generally belong to a criminal organisation or are active in the criminal milieu, e.g. in the drug scene.

Why is the current discussion about the draft law in Germany relevant to Taiwan?

On the one hand, the draft law in Germany is a possible example of a legal regulation in the area of informants and police incitement; on the other hand, German law has traditionally played a very important role in the development of the Taiwanese legal system. There is a historical reason for this. The Taiwanese Criminal Code and the Taiwanese Code of Criminal Procedure came into force over a hundred years ago. The advisor for criminal legislation, Professor Okada Asataro, had drafted the laws based on the model of German law. For this reason, the development of criminal law and criminal procedure law in Taiwan is strongly modelled on German criminal legislation and the initiatives of German criminal law scholars. For this reason, the current efforts to regulate the use of informants and the incitement of offences in Germany are also being followed very closely in Taiwan.

Do you have a favourite place that you will miss after you leave?

I have several favourite places in Passau that I will miss after I leave. Firstly, the Danube cycle path, where I was able to take many relaxing walks, and secondly the Passau adventure pool (peb), where I enjoyed the hot Passau summer with lots of swimming fun. And finally, my office at the chair and the research centre in the Nikolakloster, where I was able to work quietly and concentrated.

This text was machine-translated from German.