A Brief Discussion on the Constituent Elements and Issues of the Penalty for Failure to Appear

On May 13, 2025, the Legislative Yuan passed the third reading of Article 161-1 of the Criminal Code, introducing the penalty for failure to appear. The provision reads as follows:

“A defendant who, having been ordered by a prosecutor or judge to post bail, accept supervision, or comply with restrictions on residence, departure from the country, or departure by sea, fails to appear in court without a justifiable reason after being legally summoned, and is thereafter issued a warrant of arrest, shall be sentenced to imprisonment for not more than three years.”

I. Constituent Elements of the Penalty for Failure to Appear

1. Applicable Subjects

The provision applies to defendants who have been subjected to measures such as bail, supervision, or restrictions on residence, exit from the country, or departure by sea. However, it does not apply to defendants released without bail or to witnesses who abscond.

2. Legal Summons

If there are procedural defects in service or if the summons is not properly delivered, it cannot be considered a legal summons.

3. Absence Without Justifiable Reason

If the absence is due to justifiable reasons such as illness or force majeure, it does not constitute an offense.

4. Issuance of a Warrant of Arrest

(1) Limited to Defendants:

According to Article 84 of the Code of Criminal Procedure, only defendants in criminal cases—including those under investigation, trial, or sentence enforcement—may be issued a warrant of arrest. This does not apply to other parties in criminal proceedings, such as complainants, private prosecutors, or witnesses.[1]

(2) Only After a Failed Attempt at Arrest:

According to point 2 of the Prosecutors’ Office guidelines on issuing warrants, if the person has changed residence, efforts should first be made to locate them through household registration before issuing a summons. One failed attempt at summoning does not constitute absconding. Arrest should be attempted first, and only if this fails should a warrant of arrest be issued.

(3) Warrant of Arrest:

During the investigation stage, a warrant of arrest must be signed by the Prosecutor-General or Chief Prosecutor; during the trial stage, it must be signed by the Presiding Judge in accordance with Article 85 of the Code of Criminal Procedure.

5. Subjective Element:

The offense requires intent, either direct or indirect.

II. Background and Controversies Surrounding the Amendment

The 2017 National Judicial Reform Conference recommended modeling a specific offense for failure to appear after bail, following the U.S. legal framework. The Ministry of Justice drafted a bill in 2019, but concerns over the principle of proportionality and potential double punishment delayed its passage. Whether the new amendment truly aligns with the U.S. system requires further analysis.

III. Comparison with U.S. Law

The U.S. Federal Code (18 U.S. Code § 3146) addresses failure to appear as follows:[3]

(a)Offense.—Whoever, having been released under this chapter knowingly—

(1)fails to appear before a court as required by the conditions of release; or

(2)fails to surrender for service of sentence pursuant to a court order;

shall be punished as provided in subsection (b) of this section.

(b)Punishment.—

(1)The punishment for an offense under this section is—

(A)if the person was released in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction for—

(i)an offense punishable by death, life imprisonment, or imprisonment for a term of 15 years or more, a fine under this title or imprisonment for not more than ten years, or both;

(ii)an offense punishable by imprisonment for a term of five years or more, a fine under this title or imprisonment for not more than five years, or both;

(iii)any other felony, a fine under this title or imprisonment for not more than two years, or both; or

(iv)a misdemeanor, a fine under this title or imprisonment for not more than one year, or both; and

(B)if the person was released for appearance as a material witness, a fine under this chapter or imprisonment for not more than one year, or both.

(2)A term of imprisonment imposed under this section shall be consecutive to the sentence of imprisonment for any other offense.

(c)Affirmative Defense.—

It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.

IV. Personal Commentary

The legislation on the penalty for failure to appear reflects a commitment to maintaining the integrity of the judicial system. By establishing clear rules and penalties, it aims to deter defendants from fleeing and enhance public trust in judicial proceedings.

However, compared with the U.S. federal law, Taiwan’s amendment does not address cases involving release without bail or witnesses who flee. This loophole presents a challenge: if a defendant or key witness disappears after being released without bail, they cannot be punished under the current provision. In practice, prosecutors often summon individuals as witnesses to clarify facts before determining their status as defendants. If a key witness senses risk and flees—especially when prosecutors lack sufficient evidence to request detention—the investigation may stall.

Furthermore, requiring the issuance of a warrant of arrest as an element of the offense increases the administrative burden on courts and prosecutors, potentially making the process more cumbersome than necessary.

References:

[1] Taiwan High Prosecutors Office, Who Can Be Placed on the Wanted List?https://www.tph.moj.gov.tw/4421/4475/632364/1109096/post (Last accessed: May 14, 2025)

[2] 18 U.S. Code § 3146 - Failure to appear, Cornell Law School Legal Information Institutehttps://www.law.cornell.edu/uscode/text/18/3146 (Last accessed: May 14, 2025)