1. Introduction

On December 31, 2019, in addition to the celebrations for the coming New Year, there was one more thing that caught everyone’s attention: the passing of the Anti-infiltration Act by the Legislative Yuan. In the information age, modern warfare often takes the form of the so-called information warfare. In the face of threats of foreign funds and fake news affecting elections, advanced democracies have started legislation to cope with such threats. Taiwan is no exception. However, for a state to control specific international exchanges of its citizens, concerns of whether basic rights of free speech and free enterprise will be restricted have been raised. The following is a brief introduction of the bill and some comments at the end for your reference.

1. Brief introduction of the Anti-infiltration Act
2. There are twelve articles in the Anti-infiltration Act (the “Act”), in which, no new types of criminal activity are defined. Most of the articles supplement the insufficiencies in the existing laws with respect to objects or penalties. Examples of such laws are: the Political Donations Act,   the Presidential and Vice Presidential Election and Recall Act, the Referendum Act, the Lobbying Act, the Social Order Maintenance Act, and the Assembly and Parade Act. Among these laws, some are missing provisions on local collaborators (the so-called “white gloves”), and some have penalties that are too lenient (only fines). Hence this anti-infiltration legislation is meant to close these loopholes.    
3. Looking over the provisions of the Act (Articles 3 to 7), activities that the Anti-infiltration Act targets can be divided into three categories: influencing elections, interfering with democratic procedures, and disrupting social order. In concrete terms, they are categorized into the following five types of acts:
4. unlawful political contribution
5. unlawful electioneering
6. unlawful lobbying
7. disturbing social order or disrupting a lawful assembly with illegal means
8. spreading disinformation to affect the result of an election
9. Based on the foregoing, to be in contravention of the Act, objectively, the actor needs to be not only involved in “infiltration activities” such as being instructed, commissioned, or funded by enemy forces but also conducts the aforementioned “unlawful acts”; and, subjectively, the actor must be aware of the aforementioned “infiltration activities” and “unlawful acts” and intend for such activities and acts to occur. Once a party meets both objective and subjective criteria, it is highly likely that such a party has contravened the Act. For parties who assist in an infiltration activity unintentionally, such a party does not meet the criteria of the Act.
10. Conclusion

The Anti-infiltration Act is meant to target unlawful acts of infiltration and interference. It is not meant to target certain identities or persons. The acts that it regulates are as described in the brief introduction above, and there are restrictions in both objective and subjective criteria. Therefore, normal cross-strait commercial exchanges are not suspect of contravening the Act. However, due to the diversity of commercial activities, when abstract provisions are applied to commercial activities, different interpretations are unavoidable. Hence, one should be aware that a commercial interaction that appears ordinary to people of the same industry shall rule out the risk of being identified differently by the competent authority. If you have concerns regarding your exchange activities (especially for businesses operating in China), you are welcome to contact us for consultation.    

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Reference:

The passing of the “Anti-infiltration Act” by the Legislative Yuan

https://www.lawbank.com.tw/news/NewsContent.aspx?nid=165329.00

Newsletter of the Mainland Affairs Council: The “Anti-infiltration Bill” is constitutional, lawful, executable, clear, and precise

https://www.mac.gov.tw/News_Content.aspx?n=05B73310C5C3A632&sms=1A40B00E4C745211&s=2D78CEAA8F3DA5DE

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