IP Cases Sentencing Standards Announced for Implementation with A View to Transparency and Maximized Coherence in Sentencing. Prison Sentence May Be Increased Or Reduced by Up to 15%.

　In line with the operation of the IP Court, the Judicial Yuan announced on 25 June 2008 the key points for weighing sentences on IP-related offenses (Key Points).  The Key Points to serve as a referential basis for IP Court judges in weighing sentences marks the Judicial Yuan’s first step to bring about transparency and acceptability of sentencing.

　Further, in cases where the defendant is convicted of plural counts of offenses, the imprisonment term to be executed shall be the longest of all prison sentences pronounced on the convicted offenses each plus the product of the sum of all of the other prison sentences with 10% ~30% increase or reduction thereof.  For example, a defendant is convicted of four counts of offenses charged against him on which a one-year, a 10-month, an 8-month and a 7-month prison sentences are pronounced against him.  If the imprisonment term to be executed against him is reduced by 20%, he will serve a total of two years and eight months in prison:

　1y + (10m + 8m + 7m)*(100-20)% = 1yr + 20m = 2y8m.

　Under the Taiwanese legal regime, weighing the sentence means determining the sentence pronounced and the sentence to be executed.  The Key Points is established to provide the principles of weighing sentences without prejudice to the independence of judicial power in view of the general concerns from all sides over the determining of the imprisonment term to be executed when the defendant is convicted of plural counts of offenses.  The Key points is prescribed to clear similar concerns over the sentencing in IP cases.

　Though the Key Points is not some compulsory rules to observe, it represents the common understanding by and among the High Court, the IP Court Preparatory Office, the Taipei District Court, the Banciao District Court and the Shihlin District Court and should sufficiently serve as the guideline for the IP Court judges to follow in weighing sentences.

　The Judicial Yuan will call an advisory meeting on 14 July 2008 to lay down the phased objectives to achieve with respect to the implementation of the Key Points and develop a workable action plan to promote the Key Points as the general sentencing guideline for all cases other than IP cases.

Key points for weighing sentence on IP-related offenses
Effective date	1 July 2008
IP-related offenses subject to criminal sanction	Trademark Act offenses; Copyright Act offenses; offenses of the first paragraph of Article 35, the first paragraph of Article 20, Article 36, subparagraph 5 of Article 19 of the Fair Trade Act; offenses of Articles 253~255, Article 317, Article 318 of the Criminal Code.
Sentencing principle	Sentence to be determined based on the liability of the offending act doer in consideration of the factors provided in Article 57 of the Criminal Code as well as the principle of proportionality, fairness and justice.
Principle for increasing/reducing sentence	Up to 15% except in special cases.
Calculation of the imprisonment term to be executed	Except in special cases, the imprisonment term to be carried out against the defendant who is convicted of plural IP-related offenses shall be the longest of all prison sentences pronounced against him on all of the convicted counts of offenses plus the product of the sum of the term of the other prison sentences with 10~30% increase or reduction thereof.
Remark:  The Key Points do not operate to Patent Act offenses which are no longer subject to criminal sanction. Source:  Judicial Yuan

(2008.6)

/EMA