Part 2 comparative criminal justice
check Part 1: Comparative Criminal Procedure
Why Drive Toward American-Style Criminal Justice System?
The reception of American law spreads abroad from Israel to Japan to Latin America. This trend is obvious. Taiwan aimed at reconstructing criminal procedure along adversarial lines, but why?
When Japan colonized Taiwan (1895-1945), it imposed many of its own institutions and procedures of criminal justice. As a result, the two systems of criminal justice closely resemble each other, just like their counterpart, South Korea. After World War II, Japan, a German-based Continental system, introduced American-Style adversary system. Furthermore, Japanese New jury law was enacted in 2004 and is going to come into effect by May 2009. Could this porvide some clues?
2.The support from legal professionals and the public opinion?
BRIAN L. KENNEDY, an American attorney living in Taiwan, in his journal article, Taiwan's Criminal-Justice System: Clash of Cultures
, suggested that this sort of movement based on the agreement from legal professionals and the public opinion.
"Over the past several years, Taiwan's criminal-justice system has undergone a number of reforms. While most legal professionals and the public agreed legal reform was in order and while the attempts at legal reform were commendable in spirit, many of these reforms are bound for failure because they failed to fit together into a coherent whole and failed to account for cultural factors. However, despite the rocky first round of criminal-justice reforms, there are forces at work within Taiwan's criminal-justice system that will drive more successful subsequent rounds of reform."
Though this journal article describles the differences of the role of prosecutors and judges between Taiwan criminal justice system and American criminal justice system with high precision. I could not share all his view about reform power, but agree that large part of the reform-power comes from the support of legal professionals, especially who had legal training from the U.S.
3. Influence by joining the Cold War camp
Tay-Sheng Wang is now professor of law school in National Taiwan University, and famous for his research in Taiwan legal history. He provided some clues as following:
In the 1950s, the ROC government joined the Cold War camp of the Western democracies led by the United States, and, consistent with this, American legal institutions and ideas were to a certain extent "imported" into Taiwan. (See Tay-Sheng Wang, The Legal Development of Taiwan in the 20th Century: Toward a Liberal and Democratic Country, 11 Pac. Rim L. & Pol’y J. 531.)
4. Worldwide Leadership of American Cultue?
Since the end of the WWII, American cluture in general, and American legal culture in particular, acknowlegedly acquired worldwide leadership.
The prestige of the American legal model has been associated with the strength of the United States' political and economic structure, but also with some characteristics of its legal scholarship. Legal scholarship, being the least inherently parochial of the legal formants, and therefore the most apt to diffuse legal ideas abroad, has been identified as the most important vehicle for the circulation of legal culture, provided that two requirements are met. It needs to be simultaneously metapositivistic and perceived by foreign scholars as leading within its own boarders. Since 1930, these requirements appear to have been met by American legal scholarship. As a consequence of its prestige, American legal scholarship was able to export such general ideas as legal realism or law and economics methodology to understand the law as a phenomenon of social organization.
See Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance,48 Am. J. Comp. L. 227
The reform process of Taiwan criminal justice system was almost the same with Italian criminal justice reform process, so, could this suggestion sustain and fit in Taiwan's reform motive?
5. overload problem
Taiwan meant to provide its criminal justice with new, efficient procedures to cope with its judicial overlaod problem.
Published By Wan-Li Yang