03.2022 Life Guide
Stop obsessive harassment the law on the prevention and control of tracking harassment is about to start
Far eastern New Century Corporation / Wang Liangfang
The law on the prevention and control of stalking harassment is expected to go on the road in June this year. It clearly stipulates that there are eight categories of harassment actors, with a maximum penalty of five years and a maximum fine of NT $500000.
After years of legislation initiated by non-governmental organizations, Taiwan's first law on the prevention and control of stalking harassment (hereinafter referred to as this Law), which officially regulates the independent legislation of stalking harassment, finally passed the third reading procedure of the Legislative Yuan on November 19, 2021, was announced on December 1 of the same year, and will be officially implemented on June 1, 2022. There are different voices among the people for the passage of this legislation. Some opinions believe that Taiwan has finally caught up with the legislative level of advanced countries such as the United States and Japan, filling the legal loopholes in the past that it was impossible to simply apply criminal law, domestic violence prevention law, social order maintenance law and other laws and regulations to prevent and track harassment. However, some Internet public opinion ridiculed the provisions that "ask for a date is right", "Taiwanese men should be careful" and "how to catch up with girls in the future". They were worried that their daily social behavior would easily break the law.
What kind of behavior will constitute tracking harassment? What supporting systems and penalties are designed in the law to prevent tracking harassment? Is there anything not covered in the provisions? The following is a description and evaluation of the legislative background and content of this law.
1、 The legislative background of the law on the prevention and control of stalking and harassment
In recent years, there have been many cases of stalking and harassment in Taiwan due to the evil nature of emotional disputes, which finally evolved into major social attention cases of injury and murder. In particular, in April 2021, a female clerk of Pingdong County Communication Bank was killed by her after successive stalking and harassment due to her failure to pursue the perpetrator, which has aroused the concern of the people all over Taiwan about the active prevention and treatment of stalking and harassment, This prompted the surge in the number of cases undertaken by the police after the passing of the legislation, which was worried by the police administration. It was afraid that the capacity to maintain law and order would be insufficient, coupled with political factors such as the discontinuous term of office of legislators (Note 1). The bill, which had been shelved in the Legislative Yuan for many years, was accelerated to be deliberated and passed at the end of 2021.
2、 Introduction to the law on the prevention and control of stalking and harassment
1 Definition and behavior of tracking harassment
Paragraph 1 of Article 3 of this law defines the act of stalking harassment as "repeatedly or continuously performing" certain acts against a specific person, and this act is "against the subjective will of the victim", and the actor's motivation must be related to "sex or gender", and the degree of fear generated by the act must also be evaluated by social value, That is, it must exceed the degree of "enough to affect daily life or social activities" that can be tolerated by social communication. As for the behavior of stalking harassment, it is listed in paragraphs 1 to 8 of the same article. According to the meaning of each paragraph of the article, it can be roughly simplified into eight categories (Note 2), such as "surveillance and stalking", "waiting to follow", "threat and derogation", "communication interference", "date pursuit", "retention of goods", "impairment of reputation" and "fraudulent use of personal assets". It is worth noting that item 2 of the same article stipulates that if the perpetrator repeatedly commits the above eight types of tracking harassment against a specific person's family, relatives or other people with close life relationships, even if the perpetrator's motivation is "irrelevant to sex or gender", it is still the so-called tracking harassment in this Law (Note 3).
2 Two stage disposal of written warning and protection order application of police authority
This legislation lists the police organ as the first-line disposal personnel for tracking harassment. According to Item 2 of Article 4 of this law, when the police organ receives a report from the public on tracking harassment, if it is considered to be suspected of a crime after investigation, it can directly issue a written warning to the perpetrator or or take other protective measures. In addition, victims of the harassment act may appeal to the court to issue a protection order to prohibit the perpetrators from continuing to follow up harassment or to request them to stay away from specific premises and to prohibit access to registered residence information, but the prerequisite is that the injured person must have been warned in writing by the police authorities for the tracking of harassment and a written warning is issued within two years of the issuance. In order to track the harassment, the victim can apply to the court for a protection order, and if the tracking harassment among family members specified in the domestic violence prevention and control law does not apply to the provisions of this Law on protection orders (Note 4), it can be seen that legislators try to distinguish the normative object of this Law and the domestic violence prevention and control law from the legal effect of protection orders.
3 Stalking is a criminal offence
In the past, in practice, the handling of stalking harassment can only be handled through the crime of coercion and intimidation in the criminal law of the Republic of China or the administrative punishment in the social order maintenance law. Sometimes the constituent elements of the provisions are not fully consistent with the objective behavior and subjective motivation of stalking harassment, which is difficult to establish. Therefore, the act of stalking harassment is finally explicitly defined as a criminal offence in Article 18 of this legislation, which is in line with the principle of criminal law, and can be sentenced to fixed-term imprisonment of not more than five years, criminal detention or a fine of not more than NT $500000 (Note 5).
3、 Comments on the contents of current laws and regulations
Tracking harassment behavior is limited to the actor's internal subjective motivation related to "sex or gender". After the actual implementation, it is difficult for front-line law enforcement personnel to distinguish and operate, and they are unable to fully include all kinds of tracking harassment behavior in the current society (Note 6). In addition, the two-stage sequential disposal design of the written warning and protection order application of the police organ requires the perpetrator to violate the written warning of the police within the time limit before the victim can obtain the qualification to apply to the court for a protection order. For the specific and highly dangerous tracking and harassment behavior, it seems that it is not urgent, and the legislative design is also lacking, such as the law on the prevention and control of domestic violence, The agency can apply for an emergency protection order for the party or the party can directly apply to the court for immediate relief.
4、 Conclusion
The formulation and implementation of this law is undoubtedly a milestone in Taiwan's gender violence policy. However, after its implementation, whether the police, as the first-line law enforcement personnel to examine whether the tracking harassment is established or not, can smoothly operate the content of the provisions, as well as the subsequent interpretation of the constitutive elements of the crime of tracking harassment in judicial practice, the judgment and the punishment of the crime of tracking harassment are also worthy of our continued attention and observation.
Note 1: Legislative Yuan bulletin Office (2020), Legislative Yuan bulletin, Vol. 109, No. 26, P. 377, legislative yuan.
Note 2: Item 1 of Article 3 of the law on the prevention and control of tracking harassment "The act of stalking and harassment referred to in this Law refers to one of the following acts repeatedly or continuously committed against a specific person by personnel, vehicles, tools, equipment, electronic communication, the Internet or other means, which is against his will and related to sex or gender, causing fear and sufficient to affect his daily life or social activities: 1. Monitoring, observing, tracking or knowing the whereabouts of a specific person. 2 Stalking, waiting, following or other similar means to approach the residence, residence, school, workplace, frequent access or activity place of a specific person. 3、 Warning, threat, ridicule, abuse, discrimination, hatred, derogation or other similar words or actions to specific people. 4、 Interfere with specific people by telephone, fax, electronic communication, Internet or other equipment. 5、 Asking for a date, contact, or other pursuit of a particular person. 6、 Send, retain, display or broadcast words, pictures, sounds, images or other items to specific persons. 7、 Inform or present to a specific person information or articles harmful to his reputation. 8、 Misuse of specific person's information or ordering goods or services without their consent. For the spouse, immediate blood relatives, cohabiting relatives of a specific person or persons closely related to the social life of a specific person, the method in the preceding paragraph repeatedly or continuously commits one of the acts in violation of his / her will and not related to sex or gender, which makes him / her fear and is enough to affect his / her daily life or social activities, which is also referred to as "stalking and harassment" in this law. "
Note 3: Item 2 of Article 3 of the law on the prevention and control of tracking harassment.
Note 4: Items 1 and 4 of Article 5 of the law on the prevention and control of tracking harassment.
Note 5: Items 1 and 2 of Article 18 of the law on the prevention and control of tracking harassment.
Note 6: Lu Yingjie and Wang Qiulan (2021), "welcoming the continuous review and implementation of the tracking harassment prevention and control law is the key", which is contained in: https://www.laf.org.tw/index.php?action=LAFBaoBao detail&tag=233&id=292
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After years of legislation initiated by non-governmental organizations, Taiwan's first law on the prevention and control of stalking harassment (hereinafter referred to as this Law), which officially regulates the independent legislation of stalking harassment, finally passed the third reading procedure of the Legislative Yuan on November 19, 2021, was announced on December 1 of the same year, and will be officially implemented on June 1, 2022. There are different voices among the people for the passage of this legislation. Some opinions believe that Taiwan has finally caught up with the legislative level of advanced countries such as the United States and Japan, filling the legal loopholes in the past that it was impossible to simply apply criminal law, domestic violence prevention law, social order maintenance law and other laws and regulations to prevent and track harassment. However, some Internet public opinion ridiculed the provisions that "ask for a date is right", "Taiwanese men should be careful" and "how to catch up with girls in the future". They were worried that their daily social behavior would easily break the law.
What kind of behavior will constitute tracking harassment? What supporting systems and penalties are designed in the law to prevent tracking harassment? Is there anything not covered in the provisions? The following is a description and evaluation of the legislative background and content of this law.
1、 The legislative background of the law on the prevention and control of stalking and harassment
In recent years, there have been many cases of stalking and harassment in Taiwan due to the evil nature of emotional disputes, which finally evolved into major social attention cases of injury and murder. In particular, in April 2021, a female clerk of Pingdong County Communication Bank was killed by her after successive stalking and harassment due to her failure to pursue the perpetrator, which has aroused the concern of the people all over Taiwan about the active prevention and treatment of stalking and harassment, This prompted the surge in the number of cases undertaken by the police after the passing of the legislation, which was worried by the police administration. It was afraid that the capacity to maintain law and order would be insufficient, coupled with political factors such as the discontinuous term of office of legislators (Note 1). The bill, which had been shelved in the Legislative Yuan for many years, was accelerated to be deliberated and passed at the end of 2021.
2、 Introduction to the law on the prevention and control of stalking and harassment
1 Definition and behavior of tracking harassment
Paragraph 1 of Article 3 of this law defines the act of stalking harassment as "repeatedly or continuously performing" certain acts against a specific person, and this act is "against the subjective will of the victim", and the actor's motivation must be related to "sex or gender", and the degree of fear generated by the act must also be evaluated by social value, That is, it must exceed the degree of "enough to affect daily life or social activities" that can be tolerated by social communication. As for the behavior of stalking harassment, it is listed in paragraphs 1 to 8 of the same article. According to the meaning of each paragraph of the article, it can be roughly simplified into eight categories (Note 2), such as "surveillance and stalking", "waiting to follow", "threat and derogation", "communication interference", "date pursuit", "retention of goods", "impairment of reputation" and "fraudulent use of personal assets". It is worth noting that item 2 of the same article stipulates that if the perpetrator repeatedly commits the above eight types of tracking harassment against a specific person's family, relatives or other people with close life relationships, even if the perpetrator's motivation is "irrelevant to sex or gender", it is still the so-called tracking harassment in this Law (Note 3).
2 Two stage disposal of written warning and protection order application of police authority
This legislation lists the police organ as the first-line disposal personnel for tracking harassment. According to Item 2 of Article 4 of this law, when the police organ receives a report from the public on tracking harassment, if it is considered to be suspected of a crime after investigation, it can directly issue a written warning to the perpetrator or or take other protective measures. In addition, victims of the harassment act may appeal to the court to issue a protection order to prohibit the perpetrators from continuing to follow up harassment or to request them to stay away from specific premises and to prohibit access to registered residence information, but the prerequisite is that the injured person must have been warned in writing by the police authorities for the tracking of harassment and a written warning is issued within two years of the issuance. In order to track the harassment, the victim can apply to the court for a protection order, and if the tracking harassment among family members specified in the domestic violence prevention and control law does not apply to the provisions of this Law on protection orders (Note 4), it can be seen that legislators try to distinguish the normative object of this Law and the domestic violence prevention and control law from the legal effect of protection orders.
3 Stalking is a criminal offence
In the past, in practice, the handling of stalking harassment can only be handled through the crime of coercion and intimidation in the criminal law of the Republic of China or the administrative punishment in the social order maintenance law. Sometimes the constituent elements of the provisions are not fully consistent with the objective behavior and subjective motivation of stalking harassment, which is difficult to establish. Therefore, the act of stalking harassment is finally explicitly defined as a criminal offence in Article 18 of this legislation, which is in line with the principle of criminal law, and can be sentenced to fixed-term imprisonment of not more than five years, criminal detention or a fine of not more than NT $500000 (Note 5).
3、 Comments on the contents of current laws and regulations
Tracking harassment behavior is limited to the actor's internal subjective motivation related to "sex or gender". After the actual implementation, it is difficult for front-line law enforcement personnel to distinguish and operate, and they are unable to fully include all kinds of tracking harassment behavior in the current society (Note 6). In addition, the two-stage sequential disposal design of the written warning and protection order application of the police organ requires the perpetrator to violate the written warning of the police within the time limit before the victim can obtain the qualification to apply to the court for a protection order. For the specific and highly dangerous tracking and harassment behavior, it seems that it is not urgent, and the legislative design is also lacking, such as the law on the prevention and control of domestic violence, The agency can apply for an emergency protection order for the party or the party can directly apply to the court for immediate relief.
4、 Conclusion
The formulation and implementation of this law is undoubtedly a milestone in Taiwan's gender violence policy. However, after its implementation, whether the police, as the first-line law enforcement personnel to examine whether the tracking harassment is established or not, can smoothly operate the content of the provisions, as well as the subsequent interpretation of the constitutive elements of the crime of tracking harassment in judicial practice, the judgment and the punishment of the crime of tracking harassment are also worthy of our continued attention and observation.
Note 1: Legislative Yuan bulletin Office (2020), Legislative Yuan bulletin, Vol. 109, No. 26, P. 377, legislative yuan.
Note 2: Item 1 of Article 3 of the law on the prevention and control of tracking harassment "The act of stalking and harassment referred to in this Law refers to one of the following acts repeatedly or continuously committed against a specific person by personnel, vehicles, tools, equipment, electronic communication, the Internet or other means, which is against his will and related to sex or gender, causing fear and sufficient to affect his daily life or social activities: 1. Monitoring, observing, tracking or knowing the whereabouts of a specific person. 2 Stalking, waiting, following or other similar means to approach the residence, residence, school, workplace, frequent access or activity place of a specific person. 3、 Warning, threat, ridicule, abuse, discrimination, hatred, derogation or other similar words or actions to specific people. 4、 Interfere with specific people by telephone, fax, electronic communication, Internet or other equipment. 5、 Asking for a date, contact, or other pursuit of a particular person. 6、 Send, retain, display or broadcast words, pictures, sounds, images or other items to specific persons. 7、 Inform or present to a specific person information or articles harmful to his reputation. 8、 Misuse of specific person's information or ordering goods or services without their consent. For the spouse, immediate blood relatives, cohabiting relatives of a specific person or persons closely related to the social life of a specific person, the method in the preceding paragraph repeatedly or continuously commits one of the acts in violation of his / her will and not related to sex or gender, which makes him / her fear and is enough to affect his / her daily life or social activities, which is also referred to as "stalking and harassment" in this law. "
Note 3: Item 2 of Article 3 of the law on the prevention and control of tracking harassment.
Note 4: Items 1 and 4 of Article 5 of the law on the prevention and control of tracking harassment.
Note 5: Items 1 and 2 of Article 18 of the law on the prevention and control of tracking harassment.
Note 6: Lu Yingjie and Wang Qiulan (2021), "welcoming the continuous review and implementation of the tracking harassment prevention and control law is the key", which is contained in: https://www.laf.org.tw/index.php?action=LAFBaoBao detail&tag=233&id=292
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