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Published online by Cambridge University Press: 28 March 2017
Public Prosecutor V. Wang Min-tao and Sung Chen-wu.
District Court of Taipei, Nov. 8,1965. File No.: 54th Year, Shu—2107.
The defendants were Chinese nationals doing business in Seoul, Korea. On July 8, 1965, they led a number of Chinese nationals to the Chinese Embassy protesting the Embassy’s sale of some lands to Koreans. After having forcibly entered the Embassy, they led those Chinese in destroying the Embassy’s gate and furniture. They were arrested by Korean police and later handed over to Chinese authorities in Taiwan. They were prosecuted for interference with public functions and were sentenced to four and three years’ imprisonment, respectively, in accordance with Article 136 of the Chinese Criminal Code.
Assisted by John E. Donnelly, Cornelius B. Prior, Jr., and William J. Williams, Jr., of the New York Bar.
Reported and translated into English by Dr. Hungdah Chiu, Associate Professor of International Law at National Taiwan University College of Law.
1 Art. 7 of the Chinese Criminal Code provides: “This Code shall apply to an offense … which is committed by a citizen of the Republic of China beyond the territory of the Republic of China and for which the minimum basic punishment is imprisonment for not less than three years… . “ The defendants were prosecuted under Art. 136 where the minimum basic punishment is imprisonment for one year; therefore, the court cannot assume jurisdiction under Art. 7.
2 Art. 5 of the Convention provides: “Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing… . “ The court does not seem to realize that, according to this article, the defendant is not required to apply for special permission to fly over or land in Chinese territory. However, it should be noted that on July 26, 1949, the Chinese Government notified all countries concerned that flights over Chinese territory by all foreign aircraft, except those undertaken pursuant to bilateral agreements on air transportation concluded between China and other countries, or those specially authorized by the Chinese Government through diplomatic channels, would be temporarily prohibited in accordance with Art. 9 of the Convention. China Handbook, 1951, at 140 (Taipei, 1951).
3 It is doubtful whether this article is consistent with Art. 5 of the Convention cited in note 2 above.
4 Art. 95 provides: ‘ ‘ Any aircraft pilot or navigator who violates the provisions of Article 16 of this Law shall be liable to imprisonment for a term not exceeding three years or to penal servitude or to a fine not exceeding the sum of 3000 yuan [U.S. $225.00].” The remaining part of the decision explains why the defendant's sentence should be suspended.