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Author	Prof Jianlin Chen
Organisation/Institution	The University of Melbourne, Melbourne Law School, Asian Law Center
Country	AUSTRALIA
Panel	Constitutional and Admin Law
Title	Punishing the Passenger for the Driver’s Drunk Driving: A Legal and Societal Case Study of Collective Punishment in Taiwan
Abstract	In the never-ending quest to deter drunk driving, China and Taiwan separately but concurrently consider punishing the passenger of a vehicle driven by a drunk driver. Concerns of collective punishment (i.e., where punitive sanctions are imposed on an individual by virtue of the person’s association/relationship with the primary wrongdoer) halted the attempted legislative amendment in China. On the other hand, Taiwan duly enacted such law in 2019. In this paper, I utilize this new Taiwan drunk driving law as a case study to critically examine the legal and political considerations behind collective punishment. Legally, I surveyed the Taiwanese courts interpretation of the provision. I further situate the courts’ interpretation in the broader debates relating to administrative penalty in Taiwan, highlighting the distinctive features of Taiwan’s approach towards mens rea vis-à-vis both the German civil law and English common law approach. This sets up my core legal argument: the technical aspects of instituting collective punishment in Taiwan is straightforward with only limited constitutional and legal constraints. Notwithstanding the apparent peculiarity and controversies of punishing someone (i.e., passenger) for another’s (i.e., driver) illegal conduct, it simply involves a legislative decision to create and impose a supervisory obligation on that someone. Politically, I critically examine the political and societal factors that led to this imposition collective punishment in Taiwan. I identify how this collective punishment is driven by an overwhelming societal impetus on using punitive sanctions to address the perceived social evils of drunk driving by any means necessary. I further draw on the contrasting law reform outcomes of Taiwan and China to highlight the complicated and non-linear relationship between democracy (or the lack thereof) and punitive legal responses.
Biography	Jianlin is Professor and Associate Dean (International) at Melbourne Law School. He grew up in Singapore and Taiwan. He obtained his LLB from National University of Singapore, and his LLM and JSD from the University of Chicago. He joined the Melbourne Law School in 2017 after starting his academic career at the University of Hong Kong in 2011. His current primary research interests are law & religion and criminal law, with a particular focus on fraud (e.g., religious fraud regulation, fraudulent sex criminalization) and through a combination of comparative perspectives and economic analysis. Together with other research projects that traverse diverse subject matters (e.g., natural resources, property, corporate & securities, government procurement, culture war, charity, tax), his underlying research agenda is to develop an overarching theoretical inquiry that 1) explores how the different forms of state actions—ranging from law, regulation, tax, state ownership, public contract, government speech—have surprisingly similar capacity and propensity (or the lack thereof) to achieve public interest objectives; and 2) critically evaluates the prevailing approach of prescribing distinct legal constraints and normative considerations for each category of state actions.