Relevant Legal Provision

Article 336, Paragraph 2 of the Criminal Code：

A person who commits the offense specified in Paragraph 1 of the preceding Article with respect to property in their possession by virtue of their occupation shall be sentenced to imprisonment for not less than six months and not more than five years, and may additionally be fined not more than NT$90,000.

Article 339-3, Paragraph 1 of the Criminal Code：

A person who, with the intent to unlawfully obtain property for themselvesa third party, uses improper means to input false dataunauthorized commands into a computerrelated equipment, thereby creating records concerning the acquisition, loss,alteration of property rights and obtaining another person's property, shall be sentenced to imprisonment for not more than seven years and may additionally be fined not more than NT$700,000.

Article 358 of the Criminal Code：

A person who, without authorization, accesses another person's computerrelated equipment by entering another person's account credentials, circumventing computer security measures,exploiting vulnerabilities in a computer system shall be sentenced to imprisonment for not more than three years, short-term imprisonment,a fine of not more than NT$300,000,both imprisonment and a fine.

Article 359 of the Criminal Code：

A person who, without authorization, obtains, deletes,alters electromagnetic records stored on another person's computerrelated equipment, thereby causing damage to the publicanother person, shall be sentenced to imprisonment for not more than five years, short-term imprisonment,a fine of not more than NT$600,000,both imprisonment and a fine.

Facts and Reasons

The client previously worked as an accountant and cashier at a company, responsible for managing its daily financial records and transactions.

During employment, the client frequently paid company expenses in advance, including purchases, mobile phone expenses, and company meals. The company subsequently reimbursed the client through bank transfers.

However, after the client resigned, the company accused the client of repeatedly transferring funds from the company's bank account into their personal account through online banking without authorization during employment. The company subsequently filed a criminal complaint, alleging occupational embezzlement, fraud through the use of computer equipment, unauthorized access to another person's computer, and alteration of electromagnetic records.

Prosecutor's Disposition

Following the conclusion of the investigation into the defendant's alleged embezzlement and related offenses, the prosecutor determined that a non-prosecution disposition was warranted.

The investigation confirmed that funds had been transferred from the company's bank account to the client's personal account, as evidenced by transaction records from both accounts. Although these transfers were established as facts, the prosecutor reached the following conclusions:

1. The Bank Transfers Were Arranged Before the Client's Resignation, Consistent with Witness Testimony and the Complainant's Statements.

A witness testified that the client had not returned to the company after resigning and that the transfers executed after the resignation had already been scheduled before the client left the company.

The company's representative also stated that, during the client's employment, bank transfers could be executed simply by inserting a security key. However, after the client's resignation, an additional mobile phone verification procedure was introduced.

These statements demonstrated that the relevant bank transfer arrangements had been completed before the client's resignation.

2. The Advance Payments Were Supported by Evidence, and Their Amount Exceeded the Funds Transferred.

Based on purchase records and conversations with customers provided by the client, the investigation established that the client had indeed paid various company expenses in advance during employment, including purchases of goods, mobile phone expenses, and company meals. The total amount of these advance payments exceeded some of the funds transferred into the client's account.

Furthermore, according to a settlement agreement, the company's representative had agreed to repay certain amounts on behalf of another party, which corresponded to the remaining transferred funds.

Therefore, the client's explanation that the transfers represented company reimbursements and payments made pursuant to the settlement agreement was supported by evidence.

It was consequently difficult to establish that the client had any intent to unlawfully appropriate the fundshad accessed the online banking system without authorization.

Accordingly, the client's conduct did not satisfy the legal elements of occupational embezzlement, fraud,unauthorized computer access.

3. Furthermore, Funds Deposited in a Bank Account Do Not Constitute Property "In Possession" Within the Meaning of the Crime of Embezzlement.

Under civil law, the legal relationship between a bank depositor and a bank is one of deposit for consumption. Once money is deposited into a bank account, ownership of the funds transfers to the bank, and the depositor no longer exercises actual possessioncontrol over the money in the account.

Therefore, even if a person withdrawstransfers funds from an account, such conduct does not satisfy the objective elements required to constitute embezzlement under the Criminal Code.

The present case was essentially a civil dispute and should therefore be resolved through separate civil proceedings.

As there was no other affirmative evidence sufficient to establish that the defendant had committed the offenses alleged in the criminal complaint, the prosecutor concluded that there was insufficient evidence of criminal wrongdoing and issued a non-prosecution disposition.

(Some details of the case have been adjusted, deleted,modified to protect the rights and interests of the client.)

Attorneys: Vincent Huang、 Herman Lyu