Research On Criminal Regulation On Registration By Other's Name In Taiwan Region

Borrowing other's name for registration is defined by the scholars and practices in Taiwan Region as “the parties have an agreement that one party(lender)consents to the other party's(borrower's)use of lender's name,and the borrower uses lender's name to register as the owner or right-holder of the subject matter which belongs to the borrower now or in the future(including lands,houses,vessels,aircrafts,vehicles,stocks,bank accounts,the responsible person of the company),while the borrower has the right to manage,use,profit from,and dispose of the subject matter freely.The definition is also applicable in criminal law.Under civil law,the majority of the theories suggests borrowing other's name for registration is indeed a labor contract,hence the legal effect of a contract of mandate shall apply to borrowing other's name for registration in the way of analogy.Borrowing other's name for registration exists since the reign of the Emperor Guangxu during Qing Dynasty,and becomes popular since the agricultural reform in 1947.It is a business based on people's actual need,and developed from cases accumulated in practices.The early theories and court practices regarded ‘ act of evasion of law' and ‘passive trust whether there is a good cause' as the judging criteria of whether borrowing other's name for registration is legally effective.Recently theories and court practices has altered the opinion and judges the content of borrowing other's name for registration on a case-by-case basis,which brings the content to be legally effective based on the principles for the autonomy of private law and freedom of contract if it does not violate an imperative,prohibitive provision,or public policy or morals,and has reasonable cause.The effect of borrowing other's name for registration can be categorized into internal and external effect.The internal effect is the rights and obligations between borrower and lender.In general,the borrower is bound to register the subject matter using lender's name,while the lender provides the name for the borrower to register,and may not interfere with borrower's management,use,profit from,and disposal of the subject matter,for the duration of the legal relation.The borrower shall stop using lender's name after the legal relation of borrowing other's name for registration ceases or terminates.If the lender violates this obligation,the borrower may demand to return the subject matter or for the injury.The external effect is the legal effect when the lender disposes of the subject matter to the third party.The latest court practice(“ the 3rd Civil Court Session of the Supreme Court(2017)” in Taiwan Region)holds the view of lawful disposition and states that “The subject matter being disposed by the borrower is an internal arrangement between the borrower and lender,and its effect may not reach the third party.When the borrower benefits from borrowing other's name for registration,he/she shall bear the risk that the lender might violate the contract and dispose of the subject matter.The real estate registration name has its publicity and credibility.To protect the third party's expectation toward the registration,and the safety of the transaction,the disposition which the lender disposes of the subject matter under lender's name,and registers the transfer in ownership,shall be lawful.The borrower may demand for the injury.The legal interests of borrowing other's name for registration under criminal laws are broader than that under civil law,which is to recover the rights and obligations between parties and protect the values and interests under civil law by the monetary compensation.Hence,if borrowing other's name for registration damages the political or economic system of the nation or society,or the personal or property rights of a person,or other legal interests,the criminal laws may impose sanctions.Therefore,it leads to situation that borrowing other's name for registration has its legal effect under civil laws,but is often regarded as an offense by the criminal court and being punished.For example,the lender,without the borrower's consent,registers the transfer in ownership of the subject matter to the third party.Under civil laws,the latest practice holds the view of lawful disposition,and states that whether the third party is in bad faith,the disposition is effective,so that the third party can obtain the ownership of the subject matter,and is not liable to the borrower under civil laws.However,under criminal laws,if the third party is in bad faith,which the third party knows the ownership of the subject matter belongs to the borrower,the third party and the lender may both be co-perpetrator of breach of trust,and take criminal responsibility.Thus,because the nature of civil liability and criminal responsibility are different,the statutory elements of the two are different apparently.Even if the party does not bear the civil liability,the party may be punished if the offense damages the legal interests under criminal laws.It can be seen that from the perspective of protecting the legal benefits of criminal law,the protection of the rights and interests of the parties seems to be more comprehensive.In recent years,due to borrowing other's name for registration act in civil on growing,the perpetrator often claims that the act is permitted by law,and abuse of borrowing other's name for registrationas a means of crime.In fact,borrowing other's name for registration has often been used for the commission of the offense.The established offenses include breach of trust,embezzlement,and fraudulence which damages the legal interests of a person,and causing a public official's false entry,forging instruments,using untrue information to prepare accounting documents which damages the legal interests of the society,and tax evasion,money laundering,bid rigging and procurement fraud,and borrowing licenses to engage in complementary bidding which damages the legal interests of the nation.However,borrowing other's name for registration should not be allowed to develop without restriction under the civil system,and more should not make the perpetrator using borrowing othe'sr name for registration act as a crime tool.To regulate citizen's behaviors,maintain public order,protect legal interests,prevent crimes,protect freedom and human rights,which are the functions of criminal laws,there is a need that criminal laws regulate the abuses of borrowing other's name for registration.Due to the fact that borrowing other's name for registration prevails over the Chinese area,there is no complete criminal legislation about it in Europe or America.When referring to the legislation of domestic or oversea legal system,there are only Republic of Korea legal system,which has “Act on the registration of real estate under actual titleholder's name”,and Taiwan Region legal system that can be referred to.The other countries,as the international treaties require,focus on the prevention and punishment of money laundering,including “ Act on Prevention of Transfer of Criminal Proceeds” of Japan,Criminal Law of Germany,and “Corporate Transparency Act of 2019” of United States House of Representatives.Borrowing other's name for registration of Korea and Taiwan Region have similar development,but the attitudes of the legislation of the two are quite different.The former requires the real owner of the subject matter shall use his/her own name to register,and forbids borrowing other's name for registration.If in violation,the offense of nominal trust may be imposed on the borrower or lender.The latter recognizes the effectiveness of borrowing other's name for registration based on the respect for the autonomy of private law and freedom of contract,and establishes offenses based on the abuses of borrowing other's name for registration.Therefore,the legislation of different countries(regions) and the law practices of Taiwan Region could be a reference for Mainland Region to use criminal laws to regulate borrowing other's name for registration.This study believes that in terms of the criminal laws legislation of the abuses of borrowing other's name for registration,the legislators should consider the nature(or type)of the offense,and refer to the boundary of the statutory elements of each offense indicated in this study,to impose punishment on the people who abuse borrowing other's name for registration to commit crimes.For example,in terms of the breach of trust which the lender disposes of or refuse to return the subject matter,the boundary of the statutory elements should be whether lender's conduct has affected borrower's right to manage,use,profit from,or dispose of the subject matter.The reasoning procedure is that “During the legal relation of borrowing other's name for registration,providing the borrower the name,letting the borrower manage,use,profit from,and dispose of the subject matter,and ensuring that the borrower's right to manage,use,profit from,and dispose of the subject matter remains unchanged when the agreement ceases or terminates,are subject to the affairs which the lender agrees to deal with.If the lender disposes of the subject matter without authorization during the legal relationship of borrowing other's name for registration,or refuses to return the subject matter and actively pretends to be the actual owner or right-holder of the subject matter,objectively the lender breaches the trust of “ensuring that the borrower's right to manage,use,profit from,and dispose of the subject matter remains unchanged”,which shall establish the offense of breach of trust.When the abuse of borrowing other's name for registration consists with the statutory elements of the crime,there is an possibility of justifications that the conduct consists with the right of self-defense,necessity,or an lawful and proper conduct.For example,the borrower or lender facing an imminent threat to the subject matter may conduct proper and necessary defense toward the offender for self or others' rights or interests.However,for the clarification,if the borrower and lender make a fictitious expression of intent of the sale and purchase of the subject matter,and register the fake sale and purchase with the land office,they may not claim for the justification which it is a lawful conduct to transfer the subject matter based on the trust.As to the proper conduct performed in the course of business,consent of the victim,or presumptive consent,this study believe that the borrower and lender may not claim for the justification due to these causes.Whether the borrower and lender abusing borrowing other's name for registration should bear criminal responsibility depends on whether they have capacity for responsibility,mistake of law,or impossible expectation.The capacity for responsibility depends on the age and mental status.Mistake of law depends on the standard of conduct on a case-by-case basis.If there are no rightful reasons for being unable to avoid the offense,the person cannot claim for mistake of law for justification.Impossible expectation depends on the fact and background when the borrower or lender conducts.If it is something they should do,need to do,and have no other lawful method to do,which makes them under oppression and the criminal law cannot expect them to conduct a lawful behavior,the law should not blame for their conduct or require them to take criminal responsibility.Except for the offense of causing a public official's false entry,forging instruments,using untrue information to prepare accounting documents,and tax evasion which the attempt is not punishable,an attempt to commit other offenses based on the abuse of borrowing other's name for registration is punishable.As to establishing the co-perpetrator responsibility of the abuse of borrowing other's name for registration,generally it depends on whether there is an agreement and co-perpetration to commit a crime between the actors.It should be noticed that there are some special regulations of co-perpetrator,including Article 42 of Tax Collection Act in regards to solicitation or assistance of tax evasion which is an independent punishment.If the lender is the dummy director and lets the borrower use the company name to assist of tax evasion of others,the lender and borrower are both the co-perpetrator of the offense of tax evasion.The person abusing borrowing other's name for registration may be a abettor or aider,and may be the co-perpetrator based on a case-by-case basis.This study focuses on the criminal laws and regulations of borrowing other's name for registration,and targets on the observation of the offense of breach of trust,embezzlement,fraudulence,causing a public official's false entry,forging instruments,Business Entity Accounting Act,Tax Collection Act,Money Laundering Control Act,and Government Procurement Act.Under which circumstance would the actor's abuse of borrowing other's name for registration be established as a crime,or not established as a crime? This study discusses the boundary of the statutory elements of the crime from the abuse of borrowing other's name for registration,the criminality,obligatory,attempt,and joint offenders.