While the opening match of Taipei Dome has come to an end, the judicial trials arising from its construction process continue. The Taipei District Prosecutor’s Office concluded the investigation in October 2017, considering that A, the former Director of Department of Finance, Taipei City Government, has kept favoring the developer during the contract negotiations by illegally altering the announced draft contract. B, the former CEO of Taiwan Architecture & Building Center (“TABC”), has illegally instructed TABC to issue the certificate, which allowed the developer to apply for a construction license within the timeframe. Therefore prosecutor has indicted both of A and B for the crime of abusing public power for private profit in violation of the Anti-Corruption Act. The first instance judgment of this case (“Judgment”) was issued at the end of 2022. A was sentenced to nine years of imprisonment, whereas B, who was found by the prosecutor a suspected major player of this case, was acquitted of all the charges. This article aims to examine the elements and boundaries of the crime of abusing public power for private profit.

During the trial, A did not deny that when he negotiated with the developer on behalf of the Taipei City Government in 2004, he has added exception clause for the establishment of superficies, lowered the maximum amount of liquidated damages, and deleted the collection of operating royalties. However, A argued that these were done for the sake of the early completion of the Taipei Dome, which was in line with the public interest, and that he should have discretionary power and margin of appreciation. The Judgment first cited Article 22 of the Enforcement Rules of Act for Promotion of Private Participation in Infrastructure Projects at the time of the conduct, stating that in principle, the investment contract signed between the competent authority and a private organization shall not violate the contents of the announcement. Further, the Judgment concluded that A’s repeated changes of the previously announced conditions during the negotiation process not only seriously affected the rights and interests of all Taipei citizens, but also resulted in unfair competition for other private organizations interested in applying for the bidding process A’s arguments above could not serve as grounds for innocence.

As for B, the Judgment found that the Construction and Planning Agency, Ministry of the Interior (now the National Land Management Agency, Ministry of the Interior, “Agency”) has commissioned the TABC to evaluate the fire protection and evacuation performance of the building, and that Taipei Dome’s fire protection and evacuation plan had to obtain TABC’s assessment and Agency’s approval before the construction license could be applied for. From 2008, the developer’s application for fire protection evaluation failed four times. On March 3, 2011, the Taipei City Government sent a letter to the developer, requesting the developer to obtain the construction license within four months, otherwise, the construction or operation of the Taipei Dome might be suspended. Ten days before such deadline, the TABC made a review conclusion on June 23, 2011, in which it pointed out four deficiencies in the Taipei Dome’s fire protection plan that would affect the evacuation. TABC requested the developer to submit the final version of the plan within six months. The next day, B instructed the engineer to change the review conclusion into “approved in principle, and to complete the approval before the commencement of construction,” and handed it over to the developer for it to apply for a construction license. However, the official of the Taipei City Government refused to grant the license as it was in violation of the laws and regulations. On June 27, 2011, such engineer has followed B’s instructions and completed hundreds of pages of assessment through the night, and in the afternoon of the same day, the Agency also completed the bureaucracy signatures on the assessment. In the end, the developer succeeded in obtaining the construction license for the Taipei Dome within the timeframe.

Even though such engineer has admitted the above, the Judgment still adopted the testimony of the member of TABC’s evaluation committee that the evaluation committee’s four deficiencies were goodwill reminders that were unrelated to the assessment and would not affect the result of the assessment. Therefore, the Judgment concluded that B did not commit the crime of abusing public power for private profit. In fact, the crime of abusing public power for private profit requires that a civil servant “knowingly violates the law.” The past judiciary practices have emphasized that even though the administrative discretion may be improper or incorrect, if there is no violation of the law, the crime of abusing public power for private profit should not sustain (e.g., Criminal Judgements of the Supreme Court, Docket No. 95-Tai-Shang-Zi-4648 and Docket No. 91-Tai-Shang-Zi-6006). From the Judgment, the court did not point out which specific regulation that B had violated, which is probably the reason that the court could only rule in B’s favor according to the law. This also highlights the boundaries of the crime of abusing public power for private profit, which is worth noting and observing.

(The article is originally in Chinese which can be found here.)