4. CROSS-STRAIT COOPERATION IN COMBATING CRIMES AND
4.1 Patterns of Cross-Strait Crimes
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4. CROSS-STRAIT COOPERATION IN COMBATING CRIMES AND MUTUAL LEGAL ASSISTANCE BEFORE SIGNING "NANJING
AGREEMENT"
Before the “Nanjing Agreement”, there were some informal mechanisms for dealing with cooperation of counter crimes and mutual legal assistance between Taiwan and mainland China. However, these mechanisms could not totally resolve the problems of cross-Strait crimes. This is the most important reason why Taiwan and mainland China have to sign the “Nanjing Agreement”. Crime patterns, cooperative mechanisms, and relevant laws of Taiwan and China will be discussed in this chapter.
From knowing these situations, we can make sure that Taiwan really has a strong need to sign the agreement of mutual legal assistance with mainland China.
4.1 Patterns of Cross-Strait Crimes
Our government has allowed people to visit relatives in mainland China since 1987, opening a new era in cross-Strait relations. Especially in recent years, accompanied with the trend of globalization, cross-Strait exchanges in various fields are expanding year by year. Combined with more frequent interaction between people,
communication and mutual benefit, many security problems have emerged, such as illegal immigration and trafficking in persons, arms and drug trafficking, economic crime, organized crimes, and so on. In 1990, Taiwan implemented "Thunderbolt Project", and in August 1996, it implemented "Zhiping Project" and other anti-crime operations. These initiatives made gangsters feel insecure, and mainland China became Taiwan's principal place for gangsters to flee to. In particular, some criminal organizations also made use of the cross-Strait political impasse, committing crimes
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on a large scale, including human trafficking, drug trafficking, money laundering, smuggling, fraud and other cross-border crimes, on both sides of Taiwan Strait.
The situation related to cross-border crimes across the Taiwan Strait can be summarized as following:
1. Hijacking
Before the 1980s, the Taiwan government set an act to greatly reward people who escaped from mainland China to Taiwan by airplane, and called them the
"righteous anti-Communist to freedom". From the first case happening in Oct. 4, 1981, when seven young men whose parents were high-ranking officials in Guangzhou planned to participate in a hijacking to Taiwan but finally failed, until the end of 1990, there were at least 19 hijackings of civil aircraft. But by the 1990s, as both sides gradually opened to one another, in order to conform to the trend of international law on the punishment for hijacking, Taiwan announced the termination of “Period of Mobilization Counter-Insurgency” on May 1, 1991, the abolition of "Sedition Law,"
and other related laws which rewards those who escaped from mainland China to Taiwan. The period 1993 to 1998 was the climax of mainland Chinese hijacking civil airplanes to Taiwan. During this period, there were 13 cases involving 18 people.
Instead of being rewarded, they faced criminal trial according to "Criminal Law" and
"Civil Aviation Law" in Taiwan. Hijacking of civil aircraft from mainland China to Taiwan gradually disappeared after that.53
Although the "Kinmen Agreement" was signed in 1990, it could only deal with cases concerning fleeing criminals and illegal immigrants. At that time, both Taiwan and China only cared about cases in which criminals committed crime in Taiwan (or
53 Aforementioned footnote 34, p. 180
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China) and then fled to the other side. They did not consider the crime involved in two jurisdictions. Later the hijackers and the repatriation of passengers became a problem for the "Kinmen Agreement". Because hijackers violated international public law, Taiwan certainly could not give up her legal right to judge these cases.
Furthermore, repatriation of hijackers has political implications which suggest that Taiwan is part of the jurisdiction of China. China has similar concerns. Finally separation of human and aircraft and separation of hijackers and passengers have reached cross-Strait consensus and been adopted by both sides of the Taiwan Strait.54
2. Illegal immigration and human trafficking
"Illegal immigrants" often refers to people adopting non-legal approaches to enter the territory of another country, commonly known as "stowing away"; "illegal immigrants" are generally dubbed "human-snakes"; a person or organization
responsible for receiving and transporting illegal immigrants are known as
"snakeheads". The first case of a "human-snake" from mainland China to Taiwan occurred on July 5, 1982. Until the lifting of martial law in Taiwan in 1987 and the opening up of family visits, the mainland Chinese continued to sneak into Taiwan. In recent years, different "human-snake" groups collaborated with each other and evolved toward conglomeration and internationalization. They smuggled women or used counterfeit forms of marriage to send them to Taiwan, and then the women became prostitutes after they arrived.55 In recent years, Taiwan has often been graded in column 2 (Tier) list in "global human trafficking" by the U.S. State Department. In 2006 Taiwan was even ranked as "Watching List" in column 2, the second worst level.
Human trafficking has multiple ways and patterns, not limited to performances in prostitution or sexual exploitation, sex trafficking. There are other patterns, such as
54 Aforementioned footnote 43, p.p. 86-87
55 Aforementioned footnote 34, p. 181
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labor trafficking. Traffickers have two ways to smuggle Chinese women: by air or by sea. By air means sending a fake husband from Taiwan to mainland China to register for marriage with a woman, then leave her husband to return to Taiwan dealing with household registration procedures so that the spouse can obtain the identity, entry visa and then fly to Taiwan. By sea means stowing women away in fishing boats,
commonly known as the "bucket seat" approach. Human traffickers hide women in some nets in fishing boats, waiting for an opportunity along the mainland coast, sailing into Taiwan waters, and then smuggling the women ashore.
According to statistics offered by the National Police Administration, since 2003, police seized more and more mainland women in the Taiwan region in sham
marriages running prostitution. But cases of smuggling women to Taiwan for prostitution are gradually declining (see Table 2). The reason should be that fake marriage has lower risk than stowing women away to Taiwan.56Human traffickers in China enroll those who want to work in Taiwan, and then transport them to Taiwan.
The recruitment and fundraising both occur in mainland China. Law enforcement bodies in Taiwan have no way of implementing judicial power to investigate the criminal groups in the preliminary stage.57
56 Chen Chen-Fen(2009), “The Impact of Human Trafficking Law on Investigation Practice Regarding Cross-Strait Sexual Trafficking”, Perspective and Exploration, Vol. 7, No.4, p. 88.
57 Aforementioned footnote 54, p. 92
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Table 2. Statistics of Illegal Immigrant Mainland Chinese
Treatment People taken in Shelter Repatriation
Year male female total frequency male female total
1992 2,749 155 2,904 12 1,698 114 1,812
1993 5,684 260 5,944 25 5,709 277 5,986
1994 3,056 160 3,216 23 4,514 196 4,710
1995 2,094 154 2,248 7 1,332 95 1,427
1996 1,449 200 1,649 10 2,072 178 2,250
1997 1,071 106 1,177 6 1,052 164 1,216
1998 1,183 111 1,294 5 1,030 91 1,121
1999 1,656 116 1,772 6 1,092 74 1,166
2000 1,201 326 1,527 7 1,083 147 1,230
2001 872 597 1,469 12 1,269 679 1,948
2002 826 1,206 2,032 9 794 608 1,402
2003 538 2,920 3,458 14 680 1,557 2,237
2004 706 1,077 1,783 9 330 1,110 1,440
2005 936 177 1,113 14 745 1,607 2,352
2006 747 87 834 9 925 671 1,596
2007 398 48 446 5 462 133 595
2008 228 57 285 3 308 57 365
2009 170 76 246 5 168 68 236
2010 till Apr 41 11 52 1 29 21 50
Total 25,605 7,844 33,449 182 25,292 7,847 33,139
Source of Data: National Immigration Agency. (http://www.immigration.gov.tw/aspcode/info9904.asp. Date
of logging on: 04/02/2011.)
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“Human trafficking” is not stipulated as a crime in China’s “Criminal Law”, but it is included in the criminal behavior in “Nanjing Agreement”; China considers the behavior of “human trafficking” consistent with the interpretation of the crime of kidnapping, organizing cross-border smuggling or organized crime, so it should be included in the scope of cross-Strait cooperation in cooperation in combating crimes.58
3. Trafficking of drug and firearms
Smuggling is a kind of tax evasion. It will not only affect national tax revenue, but also jeopardize normal development of domestic business, because of illicit transportation of controlled goods. As for smuggling drugs and firearms, it is even more harmful to public order. Therefore we should pay more attention to crack down on it and prevent from its happening. However, smuggling drugs and firearms is very lucrative. As a result, it is not easy to eradicate this kind of cross-border crime.59
4. Taiwanese criminals, suspects, wanted criminals or criminal defendant fled to mainland China
Since interaction between Taiwan and China is getting more and more frequent, and since the two sides lack cross-Strait mutual legal assistance, the result is that in Taiwan perpetrators, suspects, wanted criminals or criminal defendants flee to the mainland to hide. Infamous fugitives, such as Tuntex Group President Chen You-Hao, former Legislative Yuan Speaker Liu Sung-Fan, heavyweight of Bamboo Union Zhang An-Lok, and President of Guang-San Department Store Tseng Cheng-jen, are all still in China. Moreover, China now has the largest concentration of Taiwanese gangsters. Shifting of Taiwanese gangsters to the mainland in large numbers began in
58 Aforementioned footnote 54, p. 97
59 Wong Zong-Yao(2004), “Analysis of the Problem of Smuggling and Illegal Immigrants between Taiwan and Mainland China Region”, Police Academy Monthly, Volume 3, No. 5, p. 308.
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1990, the period of implementation of the "Thunderbolt Project". Since the beginning of the “Thunderbolt Project”, more than 300 gangsters escaped from Taiwan to mainland China. In 1996, during the period of implementation of "Zhiping Project", mainland China became the main destination for fleeing Taiwanese gangsters fleeing.
In 1999, the three largest criminal organizations in Taiwan have set up their own bases in the mainland respectively, such as the Bamboo Union in Pearl River Delta in Guangdong Province, TienDau Union in Fuzhou and Xiamen, and the Four Seas Gang in Shanghai and Haikou, etc.60
5. New fraud criminality
So-called "new fraud criminality" refers to criminal behavior, in which the perpetrators cheat their victims and make them transfer their money into dummy accounts used by the criminal group. This kind of criminality began in 1997, using telecommunication as its measure, taking advantage of human weaknesses of greed to lure victims or dread to frighten victims into a trap. New fraud criminality can be roughly divided into the following four types:
(1) Cross-Strait fraud: This is the earliest pattern of fraud criminality, and it can be divided into four sub-types. The first is a simple phone fraud. Perpetrators set up a base of telephone fraud in mainland China or forward the call from Taiwan to China and then return it back to Taiwan. After the Taiwanese victims are cheated and transfer money into the appointed account, Taiwanese "riders" will withdraw the money. Typically, criminals impersonate prosecutors, police officers, clerks of telecommunications companies or banks. They may say that the "victim’s account is frozen" or "phone bills are not paid in full" as an excuse. They may also intimidate victims into misusing credit cards or linkages of suspected criminals, or demand that
60 Xu Fu-Sheng(2009),” Research on Problem and Solution of Cross-Strait jointly Combating Organized Crime”, Collection of Seminar of Police Science and Security Management for Hong Kong, Macao, and the two sides of Taiwan Strait, p.p.308-309
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the victims deposit or remit all money within the designated account. In these cases, heads of such fraud syndicates usually live in mainland China, controlling the
“Taiwan rider” overseas, to collect stolen money and then transfer it to mainland China.
The second is lottery fraud. Perpetrators are mostly under the guise of a
"high-tech company", a "biotech company" or an "investment adviser". Perpetrators will deceive the victims, telling the victims they have won the lottery. Later on the perpetrators will ask the victims to remit 15% tax into the appointed account, or use another excuse to cheat them of their money.61
The third approach is setting up dummy companies and then cheating merchandise from other companies. Fraud groups make an order to Taiwanese companies, cheating them to ship industry goods to the dummy companies in mainland China, and take the goods away, causing serious losses to Taiwanese companies.62
The fourth one is insurance fraud. Criminal groups try to obtain fake death certificates first, submitting the certificates to insurance companies, and then apply for the insurance compensation. This is usually dealt with by criminals on both sides of Taiwan Strait. Because investigation and verification is difficult for Taiwanese insurance companies, this has been another effective way for criminal groups to steal insurance money.63
(2) Intimidation, extortion, and kidnapping
This crime type can be divided into the following three methods:
The first method is a threat across Taiwan Strait. The criminal groups make a phone
61 Available at: http://news.yam.com/ettoday/society/200503/20050305442121.html, The Liberty Times, 6 March 2005, p. 17
62 Available at: http://www.cib.gov.tw/news/news01_2.aspx?no=1025. Date of logging on: 04/02/2011
63 Available at: http://www.cib.gov.tw/news/news01_2.aspx?no=1252. Date of logging on: 04/02/2011
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call from mainland China to Taiwan, saying that a friend or relative of the Taiwanese victim has been borrowing money from underground banks. Now, they say, they have kindappedh him (or her). When they make the phone call, they make beating or crying sounds at the same time, making the victim believe that what they say is true. Later on they threaten the victim to remit money to them in exchange for the release of the kidnapped person. To save their friend’s, sometimes the victim does not realize he is being cheated, and will remit the money. Once the fraud group succeeds, they will command their “Taiwan rider” to withdraw illicit money.64
The second method is a scam in which someone makes a phone call from the mainland to the victim in Taiwan, saying that his/her child has been abducted by the criminal group. If the victim does not remit money to the criminal group, they say, the child will be killed. Sometimes the victim can not contact their child, and the
perpetrators have a chance to succeed.65
The third method is "kidnap in mainland, pay in Taiwan ". This offense is a real kidnapping. Generally speaking, the kidnappers in mainland China are very familiar with the daily life and financial situation of the victim. Family members have to transfer ransom into the underground bank designated by the kidnappers. After confirming that the money is in the account, the kidnappers will release the captive.66
(3) Cyber crime
“Cyber crime” is a transmutation of computer crime, the combination of the computer systems and communication networks. Compared with computer crime,
"cyber crime" puts more emphasis on "Internet" applications. In other words, crime in
64 Available at: http://www.cib.gov.tw/news/news01_2.aspx?no=752. Date of logging on: 04/02/2011.
65 Available at: http://www.cib.gov.tw/news/news01_2.aspx?no=959. Date of logging on: 04/02/2011.
66 China Times (January 25, 2007), p. A11
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the criminal process requires the use of Internet, so that the criminal group can conduct their illegal behavior.67
In recent years, hackers from Taiwan and China use a Trojan horse to infiltrate personal computers and steal confidential information. This kind of crime can be divided into the following four methods:
The first method is buying the Trojan horse from Chinese hacker groups.
Taiwanese computer users can pay money and download the program, and then invade into other people’s computers and retrieve private information.68
In the second method, hackers on two sides of the Taiwan Strait cooperate to buy
"keyword advertising", marketing in a large search sites on the Internet, setting up many fake websites, such as "Internet Banking", "Airline", "travel agent", "Computer Technology, Inc. "," Human Bank ". If you click on these fake websites, hackers will upload a Trojan horse program to your computer, stealing personal information and account passwords, conducting unauthorized deposit transfers, borrowing money on Tnternet, or network shopping to collect money. In some cases, hackers invaded hundreds of computers which belonged to companies or people, stealing hundreds of thousands of personal data and banking passwords.69
The third method involves high-tech personnel from mainland China formatting the hacker organization, conducting the invasion of Internet mechanisms of
consumption, and then selling online game cards which they obtained illegally in major auction websites. Afterwards, they remit the money to the accounts of China Industrial and Commercial Bank in the mainland.70
67 Lin Yi-Lung, Li Jian-Guang(2000), “Study on Problems of Internet Criminality and Crime Prevention Mechanism “, Police Science Series, Vol. 31, No. 1, p. 194.
68 China Times, January 6, 2007, p. AA3.
69 Available at: http://www.cib.gov .tw/news/news02_2.aspx? no = 321. Date of logging on:
04/02/2011.
70 Available at: http://www.cib.gov.tw/news/news01_2.aspx?no = 1375. Date of logging on:
04/02/2011.
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The fourth method is commanding a member of the criminal group in Taiwan to bring the dummy financial cards to the ATM every day, testing which card is
applicable and not revoked by law enforcement. Then the member in Taiwan will tell the member in mainland China the account number of the applicable cards. Later on, the perpetrators in mainland China will deceive the victims on the Internet, pretending that the victims can buy some cheap goods or sex, and then ask the victims to transfer money to the dummy accounts in advance. Finally they withdraw the money.71
6. Money laundering
Money laundering is the process “bleaching” illicit income that is earned by criminality. In recent years, money laundering has been combined with
misappropriation. Perpetrators usually embezzle company assets, and then transfer huge amounts of money overseas. According to anonymous analysis, the number of cross-Strait money laundering each year could be from 200 billion to 300 billion RMB, equivalent to 2% GDP of mainland China. Money laundering has jeopardized the social, political, and economic situation of both sides of the Taiwan Strait.72