[引註: Wanli YANG(2007),Taiwan Criminal Justice Review,http://wanliyang.blogspot.com/2007/02/taiwanese-criminal-procedure-review-by.html]
Preface
Taiwan's criminal justice system has its roots in Continental law, but the spirit of "American-style adversarial legalism" has been partially inserted into the system since 1999. The criminal justice system is not much different from the Western system of justice right now, but the confident of this mixed system is still rarely been found in legal professional as a whole. That's why I start to trying to review the criminal procedure in a comparative perspective.
Background:
Taiwan has a codified system of law where the Constitution of Taiwan is the supreme law of the land. The Legislative Yuan enacts laws through powers granted to it by the Constitution. The Executive Yuan may also announce regulations and administrative orders in accordance with the law. The codes of law are traditionally drawn from other countries with similar codified legal systems like Japan and Germany and from traditional Chinese law.
Taiwan is a civil law country. The emphasis of the legal system is placed on statutes rather than case law. When trying to make a decision, the Courts look to what the Constitution states first and then to codes, statutes, and ordinances.
All civil matters including commercial transactions are governed substantively by the Civil Code and procedurally by the Code of Civil Procedure. The Civil Code regulates all aspects of trade, agency, employment, contracts, leases, loans, mandates, partnership, suretyship and tort.
All criminal matters are governed substantively by the Criminal Code and procedurally by the Code of Criminal Procedure.
As a civil law jurisdiction, legal decisions are made by reference to judicial interpretation of the codes and precedent, although compared with common law jurisdictions, the extent of reliance on case law may be less. (Chen,2004)
Police Department: The police force in this country is divided into the national and local levels. They are both under the jurisdiction of the Ministry of Interiorthrough the National Police
Administration.
Judicial Branch
The Judicial Yuan is made up of justices appointed by the president with the consent of the National Assembly. The justices are appointed by the president with the consent of the Legislative Yuan. The Judicial Yuan is the highest judicial organization of the state and is responsible for civil, criminal and administrative cases as well as cses involving the discipline of public functionaries.
The Council of Grand Justices serves as the main body with 17 grand justices according to Article 3 of the Organic Law of Judicial Yuan. The number has been reduced to 15 through Article 5 of the Additional Articles of the Constitution. The president and the vice present are to be selected from among the members consists of a president, the vice president, a secretary general, and a deputy secretary. The Judicial Yuan also has a panel of 17 justices.
The Judicial Yuan has the following powers:the power to interpret
the power to adjudicate
disciplinary power, and
the power of judicial administration
Meetings may be held by the Grand Justices of the Judicial Yuan, and presided over by the President, to interpret the Constitution and to unify the interpretation of statutes and regulations.
Court System
Taiwan has a three-tiered court system made up of the Supreme Court, the High Courts, and the District Courts.
The Supreme Court makes up the top tier of the court system. The function of the Supreme Court in Taiwan is similar to its function here. It serves as the court of final appeal. It s made up of five civil tribunals and five criminal tribunals.
The second tier is made up of the High Courts, which are established in the provinces or special regions. Each of the High Courts have several tribunals for civil and criminal trials made up of a presiding judge and two other judges.
The third tier are made up of district courts which are the lowest courts located in counties or cities. These courts are usually presided over by one judge. However, there can be up to three judges on a panel on cases of major proportion.
Prosecution System and Ministry of Justice
Taiwan also has a three-tiered prosecution system to coincide with the each of the three parts of the court system. All of the prosecution sections belong to Ministry of Justice which is located under the Executive Yuan. The prosecution department of the Supreme Court consists of one prosecutor-general and a number of other prosecutors.
The prosecution departments of the High Court has a chief prosecutor with several prosecutors. The prosecution department of the District court is also similarly structured with a chief prosecutor and a number of other prosecutors.
The prosecution and correction branches are under the jurisdiction of the Ministry of Justice through the Department of Prosecution and theDepartment of Corrections.
The criminal procedure legislative process was controlled by the Judical Yuan and the criminal law legistative process was controlled by the Ministry of Justice.
1.The weak, reactive state v. The strong, active stateAutonomous law: Law is connected to the state, but is understood as a protector and facilitator of individual right. Although law is part of the state and a bridge and indispensable link between the state and civil society, it is not state-centered. The American Law Institute(ALI) is one of the most important sources of new law and law reform in the U.S. and it's wholly independent of the government.(Malcolm M. Feeley p.80)
Bureaucratic law: Law is an instrument of the state and must be disciplined and harnessed to the service of the state. Judges can be neutral and even-handed, and in a very real sense independent in that law can force the state to abide by its own rules. The state is likely to maintain control of the content of legal education, define conditions for entry into the legal profession, and take the lead in law reform.( Malcolm M. Feeley P74)
The bar, legal education, influences in lawmaking, the role of lawyers in politics, and the like are so different between two of these legal system.
Taiwan's legal system belongs to bureaucratic law type. Law can acutally force to the state to abide by its own rules.
2. adversary system or inquistorial system?
The orginal criminal process can be characterized by the inquistorial principle. Under this system, the prosecutor was not merely a party to criminal proceeding, but an overseer of those proceedings. (Setsuo Miyazawa,p1) The so called "hierarchical Criminal Justice System" is responsible for fact-finding( or "the search for truth"), so in the past, it was impossible for the public to accept the plea bargaining, because justice cannot be bargained. Therefore, it is common to see that the law requires public officials who conducts proceedings in a criminal case shall give equal attention to circumstances both favorable and unfavorable to an accused, and it is so called "objective duty."(sec.2 The Code of Criminal Procedure; CCP) Even sec.11 of the Lawyer ethics guideline ask an attorney shall not sacrifice the pursuit of truth in seeking to win a case.
A possible explanation for the contrast between the U.S. and TW lies in the prosecutors' position in the criminal justice system. Most American defense lawyers firmly believe that police and prosecutors will abuse their authority unless subjected to very strong external checks. In contrast, most victims, defendants and defense lawyers in Taiwan appear to place considerable trust in prosecutors and other criminal justice officials who heavily carry the objective duty.
In recent years, new procedure had been adopted in Taiwan, such as cross-examination and plea bargaining. Taiwan begined adopted the adversary system from 1999.
3.investigation stages and trial stages
In Taiwan, the investigation stages are often considered that both police-investigation stage and prosecutor-investigation stage included. District Prosecutors conduct interview and investigate heavily by themself and then make the final decision whether to indict the defendant or not.
The trial stage means the cases had been indictment( information) by the prosecutor and received by the judge, and it's main goal is trying the pending cases. So, it is hard to clearly define which stages is pretrial stage.
4. open-file policy v. discovery procedureOnce the prosecutor decided to indict the case, Taiwanese Criminal Procedure required the prosecutor adopted the Open-file policy rather than discovery proceeding. So the defendant counsel can review all evidence before the first hearing of trial, can copy all the files and need not to ask judge to begin discovery procedure. During the trial stage, lawyers of parties will provide judge writting documents, lists of witnesses, and suggestion of inquiry lines.
5. Evidence Rule (Evidence Law) The criminal procedure amended and adopted the evidence law, such as exclusionary rules and hearsay rule. Taiwan's new evidence law are largely modeled on the US Federal Rules of Evidence. According to the presumption of innocence, the prosecutor should present the evidence and proof beyond a reasonable doubt.
6. The right to counsel, to remain silent and The presumption of innocence
The suspects have the right to counsel and invoke their right to remain silent since the very inital investigation of the police. On the other hand, the polices have been required to inform the suspects their right which quite similar to the Miranda rule in the US before they conduct interrogation. Furthermore,
once a person is arrested, the organ making the arrest shall in writing inform the said person, and his designated relative or friend, of the grounds for his arrest or detention, and shall, within 24 hours, turn him over to a competent court for trial.(Consti, Art 8) For human right concern, the interrogation itself shall tape-recorded or videotaped without interruption.If there is an inconsistency between the content of written statement by the accused and that of the audio or video record, the said portion of the statement shall not be used as evidence.(CCP,Art.100-1)
( In the UK, since the enactment of a Parliamentary staute in Octorber of 1994, British judges and juries have been authorized to draw inculpatory inferences from a defendant's refusal to answer questions or to explain his actions, ether to the police or in court. American courts, conversely, continue to encourage an adversarial, noncooperative posture on the part of defendants by banning such inferences. Robert A. Kagan,P16)( why?)
In Taiwan, practicing attorneys are required to join Bar Associations.
There are three different types of defendant counsel, public defense counsel, appointed defense counsel and retained defense counsel.
7. Plea bargain and Immunity
Plea bargaining already adopted in Taiwanese criminal procedure, but the immunity was so controversial from traditional opinion of veiw which upheld pure justice rather than tradeoff justice with suspect or witness. Thus, immunity still cannot been seen in Taiwanese Code of Criminal Procedure, but this does'nt mean that grant immunity is illegal. Immunity just like what I mention above is too controversial to conduct.
In the US, the gov't is "buying" not only a guilty plea but also information( and typically courtroom testimony.)(CCP.p.1246) In TW, the gov't usually buys a guilty plea rather than gets new information.
But the Taiwanese criminal justice system even a defendant pleas guilty, it doesn't permit conviction based solely upon the defendant's confession.
7.1 The form of Indictment:
Taiwanese prosecutors cannot indict in a scattershot way and overcharge is not credible. This reduces the room for plea bargaining.
8. The Role of Criminal Attorney( criminal defense attorney)
Unlike the counterparts of Japan, the retained criminal attorny do engage in aggressive defense work. For example, they often challenge judicial decisions to detain their clients, so, as the result, the decisions of the judges can eayily been searched by the website of Judicial Yuan.(Setsuo Miyazawa,p7)
Unlike England, in Taiwanese criminal trials, criminal defense lawyer used to tying up proceeding with objections and disputes about the admission of evidence. (Robert A. Kagan, p15)
The court pays the fees of the appointed counsels, however, the fee for appointed counsel is much lesser than that for retained counsel, so lawyers still consider the work to be public sevice without much financial benefit.
9. Cross-examination Without Jury and The role of Prosecutors
the history: the Japanese-German model
Lawyers for the prosecution and defense play a prominent role in choosing the jurors, in recruiting and coaching their own expert witness, and influencing the jury's decision in adverarial system. This kind of trail process not noly costly and time-consuming but also burdensome, such as using "racial bias" from jury selection as a method of "prolonged jury selection process". So it heavily inclines on the effort of plea bargaining .
Taiwanese prosecutors whom been required to carry the objective duty as mention above and to seek the facts as much as they can, are subject to detailed rules and hierarchical supervision concerning the investigation of facts, the determination of the proper charge, and recommendation of penalites. So that in such traditional criminal procedure the financial concern(process costs) was not existed, since prosecutors were required to serve case truth but not how much cost they needed to spend. In American criminal justice system, it is safe to say no prosecutor can achieve perfection, and it is just the role of the court and of the jury, not of the prosecutor, to determine guilt or innocence. In Taiwan, however, prosecutors seem intent on taking great effort in careful screening cases under the objective duty,decide to enter a nolle prosequi (Art. 252), non-prosecution(Art.253), deferred prosecution(Art.253-1~260), charged with summary procedure, or indict the case with trial procedure(Art.264). Therefore, they tradtionally have been required by the public to achieve a high conviction rate, or they would be considered their indictments are improper once the defendant acquitted by judge, just like their Japanese counterparts . So,they must not only engage in intensive investigation of cases to decide dismiss, charge or deferred prosecution, but also they have been required to inform all the final written decision and provide reasoning. If we understand the traditional continental prosecutor's role to resemble that of the traditional investigating judge, those practices are not necessarily inconsistent. If the prosecutor acts not as an advesary of the defense during the pretrial stage, but rather as a neutral judicial figure who collects evidence, there would be little reason to distrust the even-handed nature of his or her investigation.
10 The role of Court
American Mode
Dealing constitutional issues is an everyday phenomenon in American adverarial system. But, "the American jury trial has become so expensive, so difficult for the lawyers to conduct well, and so uncertain as to outcome that most criminal defendants and the rpofessionals involved- prosecutors, defense lawyers, judges-seek to avoid it." (Rober A Kagan,p17)
American law enforcement officials and judges are elected by local constituencies or appointed by local political leaders.
"The American jury's unreviewable powers mirror the powers of American police, prosecutors, and judges to make discretionary decisions, particularly decisions to drop or to reduce criminal charges, without meaningful possibility of legal review. The system as a whole seems designed to sarcrifice some legal regularity in order to make the criminal process less rigid, more responsive to popular notions of justice. Local democracy seems to trump legal accountability. But not quite. Support for the rule of the law arises from what Mirjan Damaska(1975)calls "coordinate"controls." ( Robert A Kagan, p19.20) Unlike Taiwan(The Training Institute for Judges and Prosecutors), in the U.S., there is no tradition of strong judicial administration which engages substantial numbers of judges to oversee docket management, train new judges, and the like. The American Bar Association and its state equivalents even offer a number of specialized publications and programs earmarked for sitting judges.
Taiwan Mode
The judiciary in Taiwan stands in marked contrast to the American judiciary. The Taiwanese judiciary is professionalized, centralized, and hierarchical.
Judges in well-developed bureaucratice legal systems are understood by the public, by the state, by lawyers, and by themselves to be a group apart from lawyers. They are judges not lawyers, and certainly not lawyers who happen to become judges.
Combining the juryless system with the imported adversarial rules of evidence. As the triers of fact, Taiwanese judges feel a sense of personal responsibility for aiming at a just and, most importantly, accurate result. Thus, they need to recaputure authority over the fact-finding process and regaining the possibility of knowing and evaluating as much evidence as that gathered at the pre-trial investigation.
In 2006 there were 16,633 law school graduates and 6,305 of them took the national bar examination, but only 3.37%,155 people, of those selected for the judges and prosecutors trainee program. On other hand, 7942 law school graduates took the Lawyer bar examination, but only8.08%, 448 people, of those passed. So the Taiwanese judges and prosecutors usually are bright and talented graduates from the top universites, and propeled into positions of power at relatively young ages but without practice the law. It is safe to say all governing parties have an incentive to extend their grip on the institutions of social control by capturing the judiciary and molding it to fit their own goals all over the world, but that in regimes with competitive party system they resist this impulse. This may explains why in bureaucratice legal system like this, along with Taiwan's democracy develops, not only Taiwanese judges enjoy judicial independent, but prosecutors embrace quasi-judicial independent also. President Chen Shui-bian in corruption case is one of the examples.
With a Romanic tradition, just like Germany legal system, Taiwan has a legal culture known for a traditional binding to the principle of legality and of "mandatory prosecution" which has, however, allowed increasing breaches of these during the past decades so that the legislative ideal type is now the exception in economic world.
(vs. selective prosecution system. ex: US)
12. Criminal Forfeiture and Civil Forfeiture
Unlike
United States law, Taiwan law does not allow for forfeiture in civil cases.
However, Taiwan law does permit forfeiture in criminal cases. Accordingly,
a defendant must be convicted in order for the Taiwan Prosecution Service to confiscate
property.
continue to check part 2:Comparative Criminal Justice
Title： The Code Of Criminal Procedure (Article 1 ~ 343) ( 2003.02.06 Amended )
http://db.lawbank.com.tw/FLAW/FLAWDAT01.asp?lsid=FL001445 (Chinese)
http://db.lawbank.com.tw/Eng/FLAW/FLAWDAT0201.asp (English)
The Code of Civil Procedure
http://db.lawbank.com.tw/FLAW/FLAWDAT0201.asp (Chinese)
http://db.lawbank.com.tw/Eng/FLAW/FLAWDAT01.asp?lsid=FL001362 (English)
references:
1.Victor Chang and Marianne Chao,Taiwan: The Legal System,25 October 2004
http://www.mondaq.com/article.asp?articleid=29181
2. The Catholic University Of America,The Legal System of Taiwan,
http://www.law.edu/ComparativeLaw/Taiwan/
Wanli Yang 楊婉莉
Published Feb. 19,2007
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