Despite the uncertainty above(What Happens in DUI Trial), even though the consequences of DUI cases might be severe. Taiwanese defendants accused of drunk driving rarely hire DUI lawyers to represent them in pretrial or trial procedures, and DUI lawyers are not as common as their American counterparts. However, it is wise to consult a local lawyer who knows the courts, the laws and your rights. If you think you may need assistance in your drunk driving case, contact an attorney for help. Alternatively, call the local DMV office or porsecutors office for help.
DMV office:
Kaohsiung Office of Motor Vehicles
Taipei DMV office
DMV record：
https://www.mvdis.gov.tw/wps/portal( in Chinese version)
DMV practice test:
http://www.thb.gov.tw/cai/default.htm( in Chinese version)
Wan-Li Yang 2007/10/19 Taiwan/ Kaohsiung
2007年10月18日 星期四
2007年10月10日 星期三
What Happens in a drink driving case in Taiwan?( DUI Laws)
Taiwan Traffic regulations ( DUI Laws) state that drivers must not drive when their breath alcohol level exceeds 0.25 mg/l. A driver who violates this regulation will receive a fine from the DMV of between NT$15000-60000, and will have his/her license suspended for one year. The driving ban takes immediate effect. Further, if the driver's alcohol level exceeds 0.55 mg/l, in addition to the find and driving ban, he/she will also be charged by the local prosecutor's office with violating public order, a charge which could lead to a jail stentence. Such cases will be dealt with in one of the following ways:
1. where appropriate, the prosecutor may decide to dismiss the public violation charge. This is very rare and at the discretion of the prosecutor, but may happen in the following circumstances:
(1) the driver did not injure anoter party and can prove that his/her contribution to society, for example, he/she is charity worker and has no criminal record; 'balances' the negative behavior.
(2) the driver did not injure another party, but was himself/herself seriously injured.
It should be stressed again that dismissal is extremely rare.
2. the prosecutor may decide to defer the case for one to three years, if the driver offers to make a donation to an NGO, carries out 40 to 250 hours of social work, or a third party has been injured but the compensation deal has already be settled. However, the following points should be noted:
(1) the donation is made to an NGO and cannot be deducted from the DMV fine.
(2) a deferral amounts to pretrial probation. If the driver commits any further crime during the probation period, the deferral order may be revoked and the case charged as normal.
3. the prosecutor may decide to prosecte the case. This could be for the following reasons:
(1) the driver fails to appear for interview (pretrial hearing) without reasonable explanation.
(2) the alcohol level is too high for the charge to be dropped (nolle ) or deferred.
(3) a third party has been injured, and no compensation deal has been settled.
----------
If a DUI case is prosecuted, the following outcomes are possible:
1. a verdict of not guilty-extremely rare.
2. a verdict of guilty with a sentence as follows:
(1) a fine.
(2) detention of 1 to 59 days-- the imprisonment might be converted into a fine.
(3) penal servitude of 2 to 12 months--the imprisonment might be converted into a fine, only if he/she get a under 6 months jail period.
Naturally, the disadvantage of being sentenced is that the defendant not only has a criminal record, but also takes the risk of being sent to jail. Therefore, dirvers are strongly urged to show up for their interview or pretrial hearing. See 3.(1) above.
(next:DUI Lawyer:http://wanliyang.blogspot.com/2007/10/dui-lawyers.html)
WanLi Yang 2007/10/11 Taiwan
1. where appropriate, the prosecutor may decide to dismiss the public violation charge. This is very rare and at the discretion of the prosecutor, but may happen in the following circumstances:
(1) the driver did not injure anoter party and can prove that his/her contribution to society, for example, he/she is charity worker and has no criminal record; 'balances' the negative behavior.
(2) the driver did not injure another party, but was himself/herself seriously injured.
It should be stressed again that dismissal is extremely rare.
2. the prosecutor may decide to defer the case for one to three years, if the driver offers to make a donation to an NGO, carries out 40 to 250 hours of social work, or a third party has been injured but the compensation deal has already be settled. However, the following points should be noted:
(1) the donation is made to an NGO and cannot be deducted from the DMV fine.
(2) a deferral amounts to pretrial probation. If the driver commits any further crime during the probation period, the deferral order may be revoked and the case charged as normal.
3. the prosecutor may decide to prosecte the case. This could be for the following reasons:
(1) the driver fails to appear for interview (pretrial hearing) without reasonable explanation.
(2) the alcohol level is too high for the charge to be dropped (nolle ) or deferred.
(3) a third party has been injured, and no compensation deal has been settled.
----------
If a DUI case is prosecuted, the following outcomes are possible:
1. a verdict of not guilty-extremely rare.
2. a verdict of guilty with a sentence as follows:
(1) a fine.
(2) detention of 1 to 59 days-- the imprisonment might be converted into a fine.
(3) penal servitude of 2 to 12 months--the imprisonment might be converted into a fine, only if he/she get a under 6 months jail period.
Naturally, the disadvantage of being sentenced is that the defendant not only has a criminal record, but also takes the risk of being sent to jail. Therefore, dirvers are strongly urged to show up for their interview or pretrial hearing. See 3.(1) above.
(next:DUI Lawyer:http://wanliyang.blogspot.com/2007/10/dui-lawyers.html)
WanLi Yang 2007/10/11 Taiwan
2007年6月7日 星期四
CIA, Italian Intelligence Kidnapping Trial
CIA, Italian Intel Kidnapping Trial to Start in Italy
"The trial of several CIA and Italian intelligence officers is set to begin Friday in Italy. Prosecutors say the officers kidnapped an Islamic cleric in Milan and transported him to Egypt, where he said he was tortured. This is the first trial associated with the CIA's policy of "extraordinary rendition." All 26 American defendants will be tried in absentia." (NPR 2007.6.7)
美國CIA幹員據悉依據所謂的"extraordinary rendition"政策與義大利情治人員在2003義大利米蘭境內，沒有持任何拘票即在一位幕斯林被害人家中將人抓走，而且逕行將人送出國境，關入位於埃及的美軍涉於埃及的秘密監獄長達十四個月之久。
義大利檢察官針對本案的調查，同時也在義大利境內引發"行政權"與"司法權 "衝突之爭。
本案義大利檢察官在一連串長期而且所費不貲的循線調查(飯店、機票與電話號碼等)而得以確定嫌疑人後，已經就本案針對CIA以綁架罪名( Kidnaping)起訴且經法官簽發起訴書，法官表示沒有經過法定程序拘捕並將人關於秘密監獄的行為就是綁架，而且根本無法改善或報障國家安全，明天法院就會依據"缺席審判"程序開始審判。
本件被害人表示被關的十四個月期間還被CIA刑求。相對於檢察官對美國傷害民主法治、義大利境內的弱勢團體的指摘，義大利政府目前就相對保守了，政府表示對美國CIA在其境內活動一事均不知情。當然美國就此案仍然保持高調，表示本案審判顯然會傷害美國的國家秘密。不過，Human Right Watch的NGOs也有插一腳，出面譴責美國的秘密活動嚴重傷害人權。
歐盟已經據新聞預測，預料應在明天( 2007.6.8)公開美國在歐盟境內抓人的相關報告了。
註:義大利司法官有三種，Prosecutors, preliminary investigaiton judges, and trial judges. 所以上開簽發起訴書的應該是preliminary investigation judges. see Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance, 48 Am. J. Comp. L. 227.
台灣的司法體制，只要將人犯通緝就可以在行政程序上加以結案，這種通緝當然是必須基於刑事訴訟法的法定程序，但是，通緝後能否繼續審判? 法律似乎也沒有明確明文禁止? 僅有一些行政程序"簡便"讓司法人員得以"結案"。其實，如果案件一概都能未經通緝即起訴或判決，當然與追求真實與正義的目標不符; 相反的，如果案件被告都已經開過庭，只是因為調查、審判時間拉長、司法官輪調換人等因素使被告被逸脫，能否再以通緝結案? 這可能要多加考慮，否則，一些經濟要犯，逸出國境後，不適度尋求國際協助，就一概以通緝結案，長久下來，實會導致有司法公信力下沉，沒能力逃逸的被關，有能力的繼續在外國消遙的怪現象。
Wan-Li Yang
2007.6.7
"The trial of several CIA and Italian intelligence officers is set to begin Friday in Italy. Prosecutors say the officers kidnapped an Islamic cleric in Milan and transported him to Egypt, where he said he was tortured. This is the first trial associated with the CIA's policy of "extraordinary rendition." All 26 American defendants will be tried in absentia." (NPR 2007.6.7)
美國CIA幹員據悉依據所謂的"extraordinary rendition"政策與義大利情治人員在2003義大利米蘭境內，沒有持任何拘票即在一位幕斯林被害人家中將人抓走，而且逕行將人送出國境，關入位於埃及的美軍涉於埃及的秘密監獄長達十四個月之久。
義大利檢察官針對本案的調查，同時也在義大利境內引發"行政權"與"司法權 "衝突之爭。
本案義大利檢察官在一連串長期而且所費不貲的循線調查(飯店、機票與電話號碼等)而得以確定嫌疑人後，已經就本案針對CIA以綁架罪名( Kidnaping)起訴且經法官簽發起訴書，法官表示沒有經過法定程序拘捕並將人關於秘密監獄的行為就是綁架，而且根本無法改善或報障國家安全，明天法院就會依據"缺席審判"程序開始審判。
本件被害人表示被關的十四個月期間還被CIA刑求。相對於檢察官對美國傷害民主法治、義大利境內的弱勢團體的指摘，義大利政府目前就相對保守了，政府表示對美國CIA在其境內活動一事均不知情。當然美國就此案仍然保持高調，表示本案審判顯然會傷害美國的國家秘密。不過，Human Right Watch的NGOs也有插一腳，出面譴責美國的秘密活動嚴重傷害人權。
歐盟已經據新聞預測，預料應在明天( 2007.6.8)公開美國在歐盟境內抓人的相關報告了。
註:義大利司法官有三種，Prosecutors, preliminary investigaiton judges, and trial judges. 所以上開簽發起訴書的應該是preliminary investigation judges. see Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance, 48 Am. J. Comp. L. 227.
台灣的司法體制，只要將人犯通緝就可以在行政程序上加以結案，這種通緝當然是必須基於刑事訴訟法的法定程序，但是，通緝後能否繼續審判? 法律似乎也沒有明確明文禁止? 僅有一些行政程序"簡便"讓司法人員得以"結案"。其實，如果案件一概都能未經通緝即起訴或判決，當然與追求真實與正義的目標不符; 相反的，如果案件被告都已經開過庭，只是因為調查、審判時間拉長、司法官輪調換人等因素使被告被逸脫，能否再以通緝結案? 這可能要多加考慮，否則，一些經濟要犯，逸出國境後，不適度尋求國際協助，就一概以通緝結案，長久下來，實會導致有司法公信力下沉，沒能力逃逸的被關，有能力的繼續在外國消遙的怪現象。
Wan-Li Yang
2007.6.7
2007年5月31日 星期四
European Security Officials Critical of U.S.
European Security Officials Critical of U.S.
May 31, 2007 · Many European security officials were highly critical of the U.S. for not sharing evidence they say is crucial for investigations and trials. Spain and Italy also rejected the U.S. military response to terrorism and insisted the best methods come from the criminal justice system. (~From NPR 2007.5.31)
自從布希以Military Commissions Act.反將最高法院一軍後，美國反恐勢力愈來越誇張, 成立越來越多的秘密軍事法庭，在各國轄區抓人家的公民，而且一抓就是送入美國自己的祕密軍事法庭，這些軍事法庭均不適用due process與fair trial，甚至沒有律師，正常的聯邦法院也都無法審理這些案件。
針對這種情形的批評，不再限於美國境內的教授、記者開罵了，這次般上國際檯面，而且還是原本應該是同一陣線的歐盟執法人員，由他們首先開砲。
在今年五月份的一場由NYU主辦而且針對執法人員的反恐會議中，美國的反恐政策與手段，終於引發歐洲，尤其是南 歐的西班牙與義大利 檢察官的強烈不滿。
兩國的執法人員均強烈質疑美國的執法方式，表示這些反恐與取締行動均應遵守刑事正義，在criminal justice之內進行，並適用正當程序due process等。一位義大利司法官，曾經起訴美國26 CIA在伊朗綁架慕斯蘭人的檢察官，表示美國未經任何程序直接將人抓入拘留所的行為根本無法被接受。另外，西班牙檢察官也支持這樣的看法，甚至認為布希在各地的拘留所，尤其是"關塔那摩"軍事基地(Guantanamo Bay, Cuba.) 裡的拘留所，黑暗的處所，廣泛的侵害人權。而且他們甚至具體引據個案，來指責美國US不願、刻意遲延與歐洲分享恐怖份子資料的態度，以及due process。他們強調，指有遵守rule of law才能在歐洲對慕斯蘭的少數民族建立起真正的信心與信賴、幕斯蘭的年輕人才不會往卡達組織靠攏。
英國UK則表示，雖然英國也是恐怖份子攻擊的目標，但是UK override concern，However,他也指出人民對執法人員的強烈不信任，在UK加入US攻打Iraq陣線後更形嚴重，人民嚴重不信任情報員，甚至引起政治陣線的分離。
NYU Law School教授說反恐沒有人說他成功，美國必須重新審查其反恐政策。
US官方則希望能在同盟中重建信心(rebuilt trust)、恢復雙方的緊密關係。
在這樣的反恐潮流中，終於由一群執法人員出來批評美國的反恐政策，我們看到的不僅是歐盟檢察官們對自己責任的期待，對境內少數民族的關懷，更看到他們在國際政治中的高度。
台灣呢?
有沒有人爲這種國際政策下的不公發出聲音?
Wan-Li Yang 2007.05.31
May 31, 2007 · Many European security officials were highly critical of the U.S. for not sharing evidence they say is crucial for investigations and trials. Spain and Italy also rejected the U.S. military response to terrorism and insisted the best methods come from the criminal justice system. (~From NPR 2007.5.31)
自從布希以Military Commissions Act.反將最高法院一軍後，美國反恐勢力愈來越誇張, 成立越來越多的秘密軍事法庭，在各國轄區抓人家的公民，而且一抓就是送入美國自己的祕密軍事法庭，這些軍事法庭均不適用due process與fair trial，甚至沒有律師，正常的聯邦法院也都無法審理這些案件。
針對這種情形的批評，不再限於美國境內的教授、記者開罵了，這次般上國際檯面，而且還是原本應該是同一陣線的歐盟執法人員，由他們首先開砲。
在今年五月份的一場由NYU主辦而且針對執法人員的反恐會議中，美國的反恐政策與手段，終於引發歐洲，尤其是南 歐的西班牙與義大利 檢察官的強烈不滿。
兩國的執法人員均強烈質疑美國的執法方式，表示這些反恐與取締行動均應遵守刑事正義，在criminal justice之內進行，並適用正當程序due process等。一位義大利司法官，曾經起訴美國26 CIA在伊朗綁架慕斯蘭人的檢察官，表示美國未經任何程序直接將人抓入拘留所的行為根本無法被接受。另外，西班牙檢察官也支持這樣的看法，甚至認為布希在各地的拘留所，尤其是"關塔那摩"軍事基地(Guantanamo Bay, Cuba.) 裡的拘留所，黑暗的處所，廣泛的侵害人權。而且他們甚至具體引據個案，來指責美國US不願、刻意遲延與歐洲分享恐怖份子資料的態度，以及due process。他們強調，指有遵守rule of law才能在歐洲對慕斯蘭的少數民族建立起真正的信心與信賴、幕斯蘭的年輕人才不會往卡達組織靠攏。
英國UK則表示，雖然英國也是恐怖份子攻擊的目標，但是UK override concern，However,他也指出人民對執法人員的強烈不信任，在UK加入US攻打Iraq陣線後更形嚴重，人民嚴重不信任情報員，甚至引起政治陣線的分離。
NYU Law School教授說反恐沒有人說他成功，美國必須重新審查其反恐政策。
US官方則希望能在同盟中重建信心(rebuilt trust)、恢復雙方的緊密關係。
在這樣的反恐潮流中，終於由一群執法人員出來批評美國的反恐政策，我們看到的不僅是歐盟檢察官們對自己責任的期待，對境內少數民族的關懷，更看到他們在國際政治中的高度。
台灣呢?
有沒有人爲這種國際政策下的不公發出聲音?
Wan-Li Yang 2007.05.31
2007年4月13日 星期五
Find Taiwan Court Cases
How to find Taiwan Court Cases?
Taiwan Online Court Cases Data Bank
This website contains almost every cases in Taiwan since 1999, except sexual abuse cases. It also provides online full-text court cases which including civil court cases, criminal court cases and administration court cases. The most amazing thing is that it also collects cases from different level of courts including the Supreme court, Appeal court(Taiwan High Court) and District Court, and it is free, online and full-text.
Taiwan Online Court Cases Data Bank
This website contains almost every cases in Taiwan since 1999, except sexual abuse cases. It also provides online full-text court cases which including civil court cases, criminal court cases and administration court cases. The most amazing thing is that it also collects cases from different level of courts including the Supreme court, Appeal court(Taiwan High Court) and District Court, and it is free, online and full-text.
However, it provides tradtional Chinese only.
This website was supervised by Judicial Yaun, so researchers can regard it an official website. In practice, local lawyers or both parties use it as a "win-rate data bank" from case outcomes. If lawyers or people are good at this research tool, it is fair to say, he or she can roughly predicts what kind of risk his or her case might has. As researchers, they prefer to analyze the legal issues by it's great keyword function and fast speed. As a prosecutor, I prefer to discuss the result of cases with defense lawyer in order to have reasonable pleas and sentence.
This website was supervised by Judicial Yaun, so researchers can regard it an official website. In practice, local lawyers or both parties use it as a "win-rate data bank" from case outcomes. If lawyers or people are good at this research tool, it is fair to say, he or she can roughly predicts what kind of risk his or her case might has. As researchers, they prefer to analyze the legal issues by it's great keyword function and fast speed. As a prosecutor, I prefer to discuss the result of cases with defense lawyer in order to have reasonable pleas and sentence.
By Wan-Li Yang
2007.4.13
rewrite 2010.6.14
2007年4月2日 星期一
New Haven犯罪問題:耶魯大學附近治安狀況
New Haven犯罪問題:耶魯大學附近治安狀況
New Haven Crime Rate
The first 3 months of 2007 saw a decline in overall crime in New Haven Connecticut, but non-lethal shootings were up, following a trend that started late last year, police officials announced Mondat.
Overrall crime for the first quarter of 2007 was down by 6% compared to the same period last year, New Haven Police Department Chief Francisco Oritiz and Mayor John DeStefano said at a press cnference. Notably, there were no homicides, compared to 5 the first quarter of 2006. But the first quarter of 2007 was marked by continued increase in both assualf and non-letheal shootings, problems that Ortiz said the NHPD hopes to remedy with increased community outreach. (From Yale News Tuesday, April 3, 2007)
New Haven 治安(耶魯大學校園附近治安狀況)
由於Yale Law School 裏的ㄧ個program,所以不顧家人的強烈concern參加了ride along的New Haven夜間巡邏。參加前對New Haven的治安，就"聞名"已久，New Haven Register毎天頭版幾乎都是刑事案件，犯罪問題在late 2005-early 2006尤其嚴重，犯罪率(crime rate)據稱是全美第六糟的城市。
雖然在A Taiwanese in New Haven一文寫到:"少數的幾個好區被壞區包圍著，有時候過了一條街就可以明顯感覺到環境的改變"，形容了耶魯大學以及New Haven治安狀況，但是ㄧ個晚上巡邏下來，我還是覺得這樣的形容不夠貼切，或許正確的說法可以改成:一個好區整個被壞區給整個包圍住，這樣才夠傳神。
毒品犯罪與槍枝犯罪均坐落在固定的neighborhood:
雖然耶魯大學花很多精神維護學生的安全，security Yale program中提供了免費的校車巡迴校園，入夜之後還有免費的護送服務，耶魯法學院(Yale Law School)還有自己的夜間專用Shuttle給 law Yale用，但還是無法避免校園內犯罪的發生。
我們在巡邏當中，就在離Yale university不遠的Howe street & Whalley Ave後面的街道上，就親眼目睹了有人在日落前在街道上留Pitbull dog, 若非當晚警員傑夫特別提醒我那是一隻Pitbull，我還沒有特別注意到，他告訴我幫派與Drug dealer都有那種狗，作為攻擊用啦(好特殊,不過~~~)。
社區、犯罪與少年犯罪問題關係密切:
另外我們還巡邏到離Yale很近約計15分鐘車程就到了的南康乃狄克州立大學（Southern Connecticut State University）,因為Southern Connecticut State University有自己的獨立校區，不像Yale university是個大學城，校區就落點在down town裡面，所以整體感覺還算好;但是出了南康大校區之後那可就又大不同了，Brookside與 Westville_Manor就在學校旁, 而Brookside Ave一整批都是荒廢掉的國民住宅，整排的上百戶國民住宅門窗都被封鎖著，看得另人瞠目結舌，Westville Manor也好不到哪裡去，毎個corner都聚集了五到十個的teenage，警車經過時每個teenage都停下來看我們，這讓我想到前一周看到的T.D. Case，心情很沉重，這些teenage怎麼擺脫掉這種被注定的命運呢?( 傑夫直接了當說:永遠不可能。好狠 ㄚ!)
(看到此文,請勿爲了好奇經過,該附近不是"治安不好'就可以形容的)。
這兩個社區曾經都有極高的犯罪率，在與老闆Michael Dearington討論T.D. case時也一併向他報告親眼所見，Michael向我解釋，這兩個國民住宅的興建，是在十五年前當時的市長因決心拆遷坐落在downtown的壞社區，而新建這兩個坐落在downtown外圍的國民住宅，將poor遷出New Haven downtown試圖解決downtown的犯罪率問題，不過，十五年過後，證實該計畫完全不可行，因為國民住宅聚居了poor有極高犯罪率，而且居民不在意住屋的維護，因此淪為犯罪天堂，不到十五年，整批國民住宅被迫必須全部封閉。
另外,較為值得觀察的還包括New Haven警局的巡邏規劃，是由個別的警員駕駛巡邏車巡邏，所以非兩人一組,警用電腦據傑夫說是非常穩定,而且還可以即時收email(因為惡性難改~~~我問傑夫可否拍攝警車照片,所以傑夫就很謹慎的發EMAIL問他的主管,他的主管就"即時"EMAIL回覆,不但說YES,還順便說她會Show up in 5 minute,因此才觀察到這台電腦的"人性化"一面)
New Haven治安(耶魯大學治安狀況):
http://www.newhavencrimelog.org/ (可查詢New Haven住家附近犯罪紀錄，很神！)
http://www.wenhui.ch/modules.php?name=News&file=article&sid=737 (寫出市民小小無奈，並提及了New Haven crime rate)
By Wan-Li Yang 2007/04/02
New Haven Crime Rate
The first 3 months of 2007 saw a decline in overall crime in New Haven Connecticut, but non-lethal shootings were up, following a trend that started late last year, police officials announced Mondat.
Overrall crime for the first quarter of 2007 was down by 6% compared to the same period last year, New Haven Police Department Chief Francisco Oritiz and Mayor John DeStefano said at a press cnference. Notably, there were no homicides, compared to 5 the first quarter of 2006. But the first quarter of 2007 was marked by continued increase in both assualf and non-letheal shootings, problems that Ortiz said the NHPD hopes to remedy with increased community outreach. (From Yale News Tuesday, April 3, 2007)
New Haven 治安(耶魯大學校園附近治安狀況)
由於Yale Law School 裏的ㄧ個program,所以不顧家人的強烈concern參加了ride along的New Haven夜間巡邏。參加前對New Haven的治安，就"聞名"已久，New Haven Register毎天頭版幾乎都是刑事案件，犯罪問題在late 2005-early 2006尤其嚴重，犯罪率(crime rate)據稱是全美第六糟的城市。雖然在A Taiwanese in New Haven一文寫到:"少數的幾個好區被壞區包圍著，有時候過了一條街就可以明顯感覺到環境的改變"，形容了耶魯大學以及New Haven治安狀況，但是ㄧ個晚上巡邏下來，我還是覺得這樣的形容不夠貼切，或許正確的說法可以改成:一個好區整個被壞區給整個包圍住，這樣才夠傳神。
毒品犯罪與槍枝犯罪均坐落在固定的neighborhood:
雖然耶魯大學花很多精神維護學生的安全，security Yale program中提供了免費的校車巡迴校園，入夜之後還有免費的護送服務，耶魯法學院(Yale Law School)還有自己的夜間專用Shuttle給 law Yale用，但還是無法避免校園內犯罪的發生。
我們在巡邏當中，就在離Yale university不遠的Howe street & Whalley Ave後面的街道上，就親眼目睹了有人在日落前在街道上留Pitbull dog, 若非當晚警員傑夫特別提醒我那是一隻Pitbull，我還沒有特別注意到，他告訴我幫派與Drug dealer都有那種狗，作為攻擊用啦(好特殊,不過~~~)。
社區、犯罪與少年犯罪問題關係密切:
另外我們還巡邏到離Yale很近約計15分鐘車程就到了的南康乃狄克州立大學（Southern Connecticut State University）,因為Southern Connecticut State University有自己的獨立校區，不像Yale university是個大學城，校區就落點在down town裡面，所以整體感覺還算好;但是出了南康大校區之後那可就又大不同了，Brookside與 Westville_Manor就在學校旁, 而Brookside Ave一整批都是荒廢掉的國民住宅，整排的上百戶國民住宅門窗都被封鎖著，看得另人瞠目結舌，Westville Manor也好不到哪裡去，毎個corner都聚集了五到十個的teenage，警車經過時每個teenage都停下來看我們，這讓我想到前一周看到的T.D. Case，心情很沉重，這些teenage怎麼擺脫掉這種被注定的命運呢?( 傑夫直接了當說:永遠不可能。好狠 ㄚ!)
(看到此文,請勿爲了好奇經過,該附近不是"治安不好'就可以形容的)。
這兩個社區曾經都有極高的犯罪率，在與老闆Michael Dearington討論T.D. case時也一併向他報告親眼所見，Michael向我解釋，這兩個國民住宅的興建，是在十五年前當時的市長因決心拆遷坐落在downtown的壞社區，而新建這兩個坐落在downtown外圍的國民住宅，將poor遷出New Haven downtown試圖解決downtown的犯罪率問題，不過，十五年過後，證實該計畫完全不可行，因為國民住宅聚居了poor有極高犯罪率，而且居民不在意住屋的維護，因此淪為犯罪天堂，不到十五年，整批國民住宅被迫必須全部封閉。
另外,較為值得觀察的還包括New Haven警局的巡邏規劃，是由個別的警員駕駛巡邏車巡邏，所以非兩人一組,警用電腦據傑夫說是非常穩定,而且還可以即時收email(因為惡性難改~~~我問傑夫可否拍攝警車照片,所以傑夫就很謹慎的發EMAIL問他的主管,他的主管就"即時"EMAIL回覆,不但說YES,還順便說她會Show up in 5 minute,因此才觀察到這台電腦的"人性化"一面)
New Haven治安(耶魯大學治安狀況):
http://www.newhavencrimelog.org/ (可查詢New Haven住家附近犯罪紀錄，很神！)
http://www.wenhui.ch/modules.php?name=News&file=article&sid=737 (寫出市民小小無奈，並提及了New Haven crime rate)
By Wan-Li Yang 2007/04/02
2007年3月30日 星期五
Shut Highway for Butterfly
Track the Secret of Death and Hope
(Picture From United Daily News/2007.03.30)
Shut Highway for Butterfly
After the last cold current bugle in every spring, Butterfly-March begins to depart from south to north inhabitant, where they breed and die in summer bright sunshine--death and hope occur in moment.
The National Freeway Bureau shut highway for purple milkweed butterflies to cross about two hours yesterday to test the function of the whole program. In scientist's initial observation, when The Bureau shut outlane, there are about 70% of butterflies would fly higher to cross highway, but 30% of butterflies could not make it and hit by passing car at inlane.
When the number of butterflies arrive 2000 in one minute, a lane in a major Taiwanese highway will be closed, protective nets and ultra-violet lights will be used to provide a safer journey for over a million migrating purple milkweed butterflies. Yesterday the number of butterflies already arrive 300 in one minute.
The owner of Butterfly-Farm [ Translate this page ] said that the efforts that government made worth applause, but setting the light to change the flying route might need to reconsider. Because butterfly needs to absorb sufficient sunshine energy to flutter its wings, there is no sufficient solar energy for this at night, so butterfly rests at night. Then, why using light at night?
Check Part 1 :Taiwan Shuts Highway for Butterflies to Cross
Published By Wan-Li Yang
March 30th, 2007
2007年3月27日 星期二
Taiwan Shuts Highway for Purple Milkweed Butterflies to Cross
Shut Highway for ButterflyA lane in a major Taiwanese highway will be closed, protective nets and ultra-violet lights will be used to provide a safer journey for over a million migrating purple milkweed butterflies. ( From BBC News) (picture from Liberty News)
The butterflies winter in the south Taiwan and travel over 600m of motorway to get back to northern, where they lay eggs and die. The young butterflies then spread to whole country but able to fly simultaneously to south every November. Without the carrying on of 2 generation, the route of migration cannot be completed.
(picture shows flying route/from 1-apple.com.tw)
To protect the millions of migrating butterflies, a 600-yard stretch of highway in southern Taiwan will be sealed off in the coming days as the migration peaks, said Lee Tai-ming, head of the National Freeway Bureau. [ Translate this page ] Authorities will set up nets to make the butterflies fly higher and avoid traffic, Lee said. They will also install ultraviolet lights to guide the insects across a highway overpass.
(the following picture from 1-apple.com.tw and the National Freeway Bureau)
Paradize Lost (The Conflict Between Trade and Envirnment)
There was a time during the 1960's when thousands of workers here were producing butterfly art and crafts. It is estimated that some 10 million butterflies were caught every year. Even though the export of butterfly products has long since stopped, the butterfly population continues to drop. The loss of habitat is thought to be the main cause of this decline. In fact many rare and precious species of butterfly are now facing extinction.( from Butterflies of Taiwan.)
Crusade Begin
Taiwan government encouraged NGOs to conduct the research of butterfly life cycle and flying routes. From marking butterflies to identify migratory butterflies, precise flying routes and altitudes remain a mystery, but researchers are able to learn some rough idea about the butterfly path by those markers. This action attracted wide spread attendtion. More and more non-profit groups and I-Shou university join the research of mystery butterfly ,and find out each year thousands of butterflies die when turbulence generated by fast-moving cars drags them into the traffic or under the wheels of oncoming vehicles in typical area.(You can see the 2005 butterfly migration picture by Liberty News:news:http://www.libertytimes.com.tw/2007/new/mar/24/today-life8.htm)
Other information and more butterfly picture
The main NGO: The Butterfly Conservation Society of Taiwan台灣蝴蝶保育學會（02）28814006或上紫蝶全球資訊網http://www.butterfly.org.tw/euploea/recruit.html - [ Translate this page ]
http://www.butterfly.org.tw/home.php [ Translate this page ]
This undated photo made available 24 March 2007 by the Butterfly Conservation Society of Taiwan shows a large drove of butterflies flying above the sky in Maulin Kaohsiung county .
http://www.mediafaxfoto.ro/photo_preview.php?photoId=2295290
The photo shows researchers trying to mark butterflies to figure out their migration route, butterfly path.
http://www.flickr.com/photos/lionyang/sets/72157594476200628/
Secret garden:http://hkls.org/siulangshui/aggregation.html
Wan-Li Yang
2007.03.27
There was a time during the 1960's when thousands of workers here were producing butterfly art and crafts. It is estimated that some 10 million butterflies were caught every year. Even though the export of butterfly products has long since stopped, the butterfly population continues to drop. The loss of habitat is thought to be the main cause of this decline. In fact many rare and precious species of butterfly are now facing extinction.( from Butterflies of Taiwan.)
Crusade Begin
Taiwan government encouraged NGOs to conduct the research of butterfly life cycle and flying routes. From marking butterflies to identify migratory butterflies, precise flying routes and altitudes remain a mystery, but researchers are able to learn some rough idea about the butterfly path by those markers. This action attracted wide spread attendtion. More and more non-profit groups and I-Shou university join the research of mystery butterfly ,and find out each year thousands of butterflies die when turbulence generated by fast-moving cars drags them into the traffic or under the wheels of oncoming vehicles in typical area.(You can see the 2005 butterfly migration picture by Liberty News:news:http://www.libertytimes.com.tw/2007/new/mar/24/today-life8.htm)
Other information and more butterfly picture
The main NGO: The Butterfly Conservation Society of Taiwan台灣蝴蝶保育學會（02）28814006或上紫蝶全球資訊網http://www.butterfly.org.tw/euploea/recruit.html - [ Translate this page ]
http://www.butterfly.org.tw/home.php [ Translate this page ]
This undated photo made available 24 March 2007 by the Butterfly Conservation Society of Taiwan shows a large drove of butterflies flying above the sky in Maulin Kaohsiung county .
http://www.mediafaxfoto.ro/photo_preview.php?photoId=2295290
The photo shows researchers trying to mark butterflies to figure out their migration route, butterfly path.
http://www.flickr.com/photos/lionyang/sets/72157594476200628/
Secret garden:http://hkls.org/siulangshui/aggregation.html
Wan-Li Yang
2007.03.27
2007年3月23日 星期五
檢察獨立與檢察一體-從美國司法部開除八位聯邦檢察官ㄧ案看行政與立法之爭
檢察獨立與檢察一體
-從美國司法部開除八位聯邦檢察官一案看行政權與立法權之爭
DOJ指司法部(類似台灣的法務部)
Attorney General( 台灣的部長兼總長)
US Attorney(聯邦檢察官，類似台灣的檢察長)
Assistance US Attorney( 助理聯邦檢察官，類似台灣的檢察官)
<起因>
美國聯邦檢察系統在全國有95個聯邦司法轄區，每區設一名聯邦檢察官。聯邦檢察官由總統提名，需經參議院批准，任期4年。而在實際操作過程中，這類任免經常由司法部(DOJ)和白宮幕僚操作。
911前如果有US Attorney出缺，司法部長(Attorney General )可任命一位臨時聯邦檢察官，服務最多達120天，在此期間，政府向參議院提出一名正式任命的人選，如果該提名人不能在120天內獲得參議院認可，則由"聯邦地方法官"任命一名正式聯邦檢察官。
911事件發生後，2006美國國會通透過修正《愛國者法案; US Patrriot Act》，自廢武功讓司法部長可以不經參議院批准直接任命"臨時聯邦檢察官"，而只要總統不提出正式人選，臨時聯邦檢察官就可以無限期當下去。(美國國會在911後自廢武功之事，也不止這ㄧ起了)。
Bush與DOJ在 2005一口氣解職了八位US Attorney(類似台灣的檢察長)的工作，而且國會又通過愛國者法案，授權DOJ部長可以不經過參議院同意任命新的US Attorney(聯邦檢察官，類似台灣的檢察長)，於是導致了日後BUSH利用此機會將US Attorney當成政治控制工具的疑慮，此事在2006年民主黨在議員大勝主導The House後，結合媒體的操作下將此議題重新送回政治舞台，尤其本月(三月)初，國會在民主黨議員的推動下介入此事，在國會要求下，司法部上周公佈了關於這一事件的一些內部通信記錄，包括司法部官員和白宮官員之間的有關電子郵件，記錄顯示，司法部長辦公室前主任新普森曾製作一份表格，給每個聯邦檢察官打分，評分標準包括對布希政府的政治忠誠度和工作表現，新普森建議司法部長岡薩雷斯(Attorney General Alberto Gonzales )保留那些“忠誠可靠”的檢察官，而開除那些與政府立場不一的檢察官。
事情爆發後，司法部雖然馬上當機立斷將新普森給開除，但是仍無法止血挽救這場政治風暴，因此，3月下旬部分共和黨議員看到這種局面與輿論壓力，深知苗頭不隊，也就迅速在此議題上向民主黨靠攏，2007.3.15數位議員集體要求美國司法部長岡薩雷斯(Alberto Gonzales)下台爲此事負責，同時也著手在2007.3.20通過法案，重新表示任命新的檢察長，仍必須經過立法同意( 算是"回收權力"吧 )。
<爭議點:布希有無濫用行政權力>
今天(2007.3.22) 參議院司法委員會(Senate Judiciary Committee)授權給主席Patrick Leahy傳喚白宮高級官員的權利(Subpoena Power;有翻譯為質詢權、調查權)，其中還不排除包括傳喚白宮重要的政治顧問karl Rove(凱利;有"布希的大腦"之稱)。
先前白宮表示願意讓其官員在不用宣誓、沒有筆錄的情形下到參議院作證，但是這種提議遭Patrick Leahy拒絕。因此，目前Committee主要是要調查DOJ的政策，是否有政治不當影響DOJ應有的法律決定情形。
其中八位革職的檢察官中據信有些到國會作證表示:其相信拒絕涉有政治動機的起訴是導致其等遭解職的原因。但是DOJ否認有此等事情。
<焦點人物>
在8位US Attorney中被革職的，包括了 2002年由BUSH任命的加州聯邦檢察官、 47歲華裔Carol Lam(中文譯為:林劍華)。民主黨議員質疑，Carol Lam被革職的真正原因，是她在2005年以受賄罪名起訴共和黨籍的加州眾議員Randy "Duke" Cunningham(坎寧漢)。因為Carol Lam(林劍華)擔任聖地牙哥聯邦檢察官(相當於台灣檢察長)後，將該市檢察部門的工作重點，由非法移民和販毒案，改為白領犯罪，並曾因指控一間涉嫌向醫生送回佣以換取好處的醫療保健公司，轟動一時。然而其領導的檢察部門工作目標，卻似乎跟美國司法部(DOJ)相左，司法部高層一通電郵中揚言「她忽視國家的優次和地方的需要」、非法移民案件「數量太少」。在Carol Lam(林劍華)起訴共和黨籍的眾議員Randy Cunningham後，把調查擴及Cunningham的友人，2006年5月向司法部申請兩份搜索狀後，美國司法部(DOJ)高級官員新普森馬上就在次日發電郵給白宮副法律顧問凱利，表示「我們在Carol Lam(林劍華)身上碰到真正的麻煩… 應在11月18 日她四年任期屆滿時準備提名別的人」，Carol Lam就在 2006年12月接到革職通知。
除了Carol Lam事件外，另一件布希遭人詬病的事件，是據NPR專訪其中一位被革職的聯邦檢察官，該前聯邦檢察官證實，在其辦理選舉詐欺案件的調查時，有共和黨議員以電話連絡州聯邦檢察官，關心案件調查情形(因為，共和黨懷疑存在計票不當行為，例如一些判刑的罪犯和不合格的選民也參加了投票，使民主黨受益)，但因該名前聯邦檢察官並未在電話中做出承諾，事後卻遭革職。為此，媒體與民主黨議員即懷疑共和黨議員向布希政府抱怨聯邦檢察官，導致了該名檢察官的被解職。這ㄧ連串的懷疑，事後布希也承認，他受到了黨內議員的壓力。
另外今天(2007.3.22)ㄧ位前在DOJ的民權部門(Civil Right Division)工作的官員也在這次NPR2007.3.22電台的專訪中表示，政治確實會影響個案的法律決定。一位在Civil Right Division工作的政府律師(有翻譯為檢察官)尤班克斯，舉出稍早她在一起訴菸草商案件中，政策確實影響最後的"求償建議"的例子。起因於尤班克斯花了五年時間調查消費者控告菸草廠商ㄧ案，許多消費者控告菸草廠商的廣告誤導消費者，特別是在有關所謂「淡菸」方面的誤導，法院審理本案的時間長達八個月，但是就在2005.06本案展開言詞辯論前夕，司法部幾位官員命令尤班克斯將本案的罰金，從1300億美元減少到100億美元，同時命令她在法庭中宣讀一份他們準備好的結辯聲明，她當時表示這根本沒有任何依據，於是她向長官表示你用寫的，我就造你寫的向法官宣讀，2005她就遞出辭呈。
<行政、立法部門的權力之爭> 各方立場
立法: 司法委員會(Commitee也)希望要慎用傳喚的權力( Subpeoenas Power)，不過也表示只有運用Subpeoenas power才可以知道事情最後的真相。
行政1: 白宮表示願意讓白宮官員到國會中進行說明，但表示不能宣誓以及製做紀錄。布希認為這ㄧ事件是民主黨在借題發揮，以行使國會調查權力為名，削弱行政部門權力。 (個人認為:這是BUSH政府看到之前整肅前民主黨總統柯林頓時，自己所運用的手段，引為前車之鑑，所以堅決不讓自己的官員宣誓作證)。
行政2: 而美國司法部(DOJ)則表示開除這些聯邦檢察官(類似台灣的檢察長)是因為這些US Attorney根本不聽從DOJ的政策決定，例如遵守DOJ的移民、恐怖份子政策等，沒有政治忠誠(Loyal Bushies)，表現不佳(Poor Performance)。所以，認為開除這些聯邦檢察官具有正當性。
(因為，美國聯邦檢察官(檢察長)乃隨政黨輪替上下台的，所以ㄧ旦新政黨上臺，總統就會提名總長、聯邦檢察官，再經過參議院同意，歷史上僅發生過一次ㄧ位聯邦檢察官拒絕下台的事件 ; 因此，美國這樣的體系下，講究的是"檢察ㄧ體"，甚至是司法部這起事件的內部email用語都是"政治忠誠度( loyal)"，這是台灣德日司法體系基礎下長期強調、講究"檢察獨立"所難以想像的。)。
<如果官員不作證呢?>
眾議員( Rep. Linda Sanchez)是小組委員會(The subcommittee)主席，她表示:我們非常擔心這樣的淨化(指布希開除聯邦檢察官的"淨化"行為)，單純的讓聯邦檢察官變成政治控制的工具，而非用來管理司法、尋求正義，讓正義可以平等得服務公眾。 "We are greatly concerned that this purge was intended to allow prosecutors to be used as simply one more instrument of political control, instead of to administer justice equal to all."
但是，被問到:如果白宮官員不到Captial Hill 作證又能如何呢? 眾議員Linda表示:這至少顯示了白宮的不當動機(不當解除US Attorney的動機)，這使公眾懷疑白宮政策。
<台灣人的解讀>
看到Linda這樣的解讀，如果此事在台灣，公眾的反應必是ㄧ陣錯愕，問號連連。
兩方不是應該一定不善罷甘休，傳喚不到行政官員，就刪部門預算啊 ! 這是我看這件事情時，的第一刻反應。否則玩了這們久，豈可這樣草草了之?
但是，看看發言人Linda的用語"公眾懷疑白宮政策"，仔細想想，這就不就是爲2008年的總統選舉先預設幾枚炸彈?換言之，大家不信任共和黨啦，民主黨又多了可以操盤的籌碼。
<看看美國政治史 學者觀點>
George Mason University Professor Mark Rozell, author of the book Executive Privilege. (行政官豁免權)作者表示:這有點像是行政權力與立法權力之爭，但是如果不能解決，就必須求之訴訟解決，但是反觀美國幾百年來的政治操作歷史，在提出訴訟(file lawsuit)之前，政客嗎 ! 兩邊就會找出互相讓步、挽救各自面子的辦法了。
大家吵到一定的程度，就適可而止，找出互相讓步的方式。
這實在很難以解讀，個人來試作比方吧。比如，這是第一次爲解職聯邦檢察官開司法委員會，並授權委員會主席可以運用Subpoena Power("傳喚權力")傳喚白宮官員。反之，行政部門也受到若干教訓，下次絕對不敢明目張膽的再一口氣解職八個聯邦檢察官了。
但是，記得~~~這不代表政治運作不會地下化。
Time table:(此部分資料來自NPR之整理)
February 2005:
白宮律師(White House Counsel) Harriet Miers 向司法部長 的首席官員Kyle
Sampson建議解雇 93 位U.S. attorneys.
March 2, 2005:
Sampson 發e-mails 給白宮律師Miers,將U.S. attorneys 分成三類，第一類是有產出的(produced), 管制佳的(managed well),以及顯示出有政治忠誠度的( exhibited loyalty to the President and Attorney General).
Jan. 9, 2006:
Sampson 發e-mails給 Miers建議僅解僱ㄧ部分的聯邦檢察官(a limited number).
March 9, 2006:
布希簽署the USA PATRIOT Act 修正案，其中一條就是授權部長(Attorney General)任命不必經過參議院同意而任命新就任的聯邦檢察官。
May 11, 2006:
Sampson發 e-mails給白宮官員( White House official) William Kelley,討論解雇聖地牙哥檢察官[San Diego U.S. Attorney] Carol Lam(林劍華)ㄧ事。當時Lam正在調查共和黨議員Randy 與共和黨congressman , Jerry Lewis貪污案.
June 2006:
司法部解雇H.E.,換上白宮官員Karl Rove的助理 J. Timothy Griffin。
Sept. 13, 2006:
Sampson發e-mail給Miers警告行政部門要注意Congress就新任職的U.S. attorneys態度，建議，如果站在行政部門的角度，利用新法授權部長(總長)ㄧ法，達到效率、減少政治因素介入白宮政策的影響。
Fall 2006:
Bush與DOJ部長會面， 表達對U.S. attorneys表現的不滿，但表示沒有提供具體姓名給部長( without naming specific prosecutors)。
October 2006:
參議員Sen. Pete Domenici 與眾議員 Rep. Heather Wilson 打電話給U.S. Attorney David Iglesias 詢問新墨西哥民主黨貪污調查 ㄧ事。隨後司法部就將US Attorney David Iglesias 列入解僱名單。
Nov. 15, 2006:
Sampson 發e-mails給 Miers表示:就解雇檢察官ㄧ事我們必須立場一致以抵禦可能發生的政治反彈( "I am concerned that to execute this plan [firing seven U.S. attorneys simultaneously] properly we must all be on the same page and be steeled to withstand any political upheaval that might result. If we start caving to complaining U.S. attorneys or Senators then we shouldn't do it — it'll be more trouble than it's worth.")
Dec. 2, 2006:
Sampson 發e-mails給司法部官員 Michael Elston表示還在等待適當時機(still waiting for green light from White House [to fire U.S. attorneys].)
Dec. 7, 2006:
DOJ同日解僱了七位 U.S. attorneys，這七位的名稱如下: Daniel Bogden of Nevada, Paul Charlton of Arizona, Margaret Chiara of Michigan, David Iglesias of New Mexico, Carol Lam of San Diego, John Mckay of Seattle, and Kevin Ryan of San Francisco.
Jan. 12, 2007:
3位參議員提出法案要求回收權力(Senate authority to oversee U.S. attorney appointments.)
Jan. 18, 2007:
部長( Alberto Gonzales)到 參議院司法委員會作證表示:我從未因為政治因素去變動US Attorney的職務。 (Hear Gonzales' testimony.From NPR)
Feb. 7, 2007:
副部長(Deputy Attorney General) Paul McNulty 到參議院的司法委員會作證表示: 毎一個個案，只要是United States attorney職位出缺時,行政部門會忠實的提出人選並經由參議院同意( confirmed by the Senate) (Hear NcNulty testify.From NPR)
March 6, 2007:
前聯邦檢察官到國會作證，部分表示相信自己是因為政治因素遭革職。
March 12, 2007:
Sampson承認沒有將DOJ與白宮通信過程據實告知DOJ部門。遞辭呈。
March 13, 2007:
DOJ將 相關文件送到國會( Capitol Hill) ，部長當天取消出行計畫並舉行記者會表示不會辭職，雖然錯誤已經犯下(Mistakes were made) (Hear Gonzales apologize.From NPR.)
March 14, 2007:
布希(President Bush)人還在墨西哥訪問，也就此舉行記者會表示:自己確實有與部長通話，這件事情的處理確實較為粗造。
檢察獨立與檢查一體
-從美國司法部開除八位聯邦檢察官ㄧ案看行政與立法之爭
楊婉莉
Wan-Li Yang
03.23.2007
-從美國司法部開除八位聯邦檢察官一案看行政權與立法權之爭
DOJ指司法部(類似台灣的法務部)
Attorney General( 台灣的部長兼總長)
US Attorney(聯邦檢察官，類似台灣的檢察長)
Assistance US Attorney( 助理聯邦檢察官，類似台灣的檢察官)
<起因>
美國聯邦檢察系統在全國有95個聯邦司法轄區，每區設一名聯邦檢察官。聯邦檢察官由總統提名，需經參議院批准，任期4年。而在實際操作過程中，這類任免經常由司法部(DOJ)和白宮幕僚操作。
911前如果有US Attorney出缺，司法部長(Attorney General )可任命一位臨時聯邦檢察官，服務最多達120天，在此期間，政府向參議院提出一名正式任命的人選，如果該提名人不能在120天內獲得參議院認可，則由"聯邦地方法官"任命一名正式聯邦檢察官。
911事件發生後，2006美國國會通透過修正《愛國者法案; US Patrriot Act》，自廢武功讓司法部長可以不經參議院批准直接任命"臨時聯邦檢察官"，而只要總統不提出正式人選，臨時聯邦檢察官就可以無限期當下去。(美國國會在911後自廢武功之事，也不止這ㄧ起了)。
Bush與DOJ在 2005一口氣解職了八位US Attorney(類似台灣的檢察長)的工作，而且國會又通過愛國者法案，授權DOJ部長可以不經過參議院同意任命新的US Attorney(聯邦檢察官，類似台灣的檢察長)，於是導致了日後BUSH利用此機會將US Attorney當成政治控制工具的疑慮，此事在2006年民主黨在議員大勝主導The House後，結合媒體的操作下將此議題重新送回政治舞台，尤其本月(三月)初，國會在民主黨議員的推動下介入此事，在國會要求下，司法部上周公佈了關於這一事件的一些內部通信記錄，包括司法部官員和白宮官員之間的有關電子郵件，記錄顯示，司法部長辦公室前主任新普森曾製作一份表格，給每個聯邦檢察官打分，評分標準包括對布希政府的政治忠誠度和工作表現，新普森建議司法部長岡薩雷斯(Attorney General Alberto Gonzales )保留那些“忠誠可靠”的檢察官，而開除那些與政府立場不一的檢察官。
事情爆發後，司法部雖然馬上當機立斷將新普森給開除，但是仍無法止血挽救這場政治風暴，因此，3月下旬部分共和黨議員看到這種局面與輿論壓力，深知苗頭不隊，也就迅速在此議題上向民主黨靠攏，2007.3.15數位議員集體要求美國司法部長岡薩雷斯(Alberto Gonzales)下台爲此事負責，同時也著手在2007.3.20通過法案，重新表示任命新的檢察長，仍必須經過立法同意( 算是"回收權力"吧 )。
<爭議點:布希有無濫用行政權力>
今天(2007.3.22) 參議院司法委員會(Senate Judiciary Committee)授權給主席Patrick Leahy傳喚白宮高級官員的權利(Subpoena Power;有翻譯為質詢權、調查權)，其中還不排除包括傳喚白宮重要的政治顧問karl Rove(凱利;有"布希的大腦"之稱)。
先前白宮表示願意讓其官員在不用宣誓、沒有筆錄的情形下到參議院作證，但是這種提議遭Patrick Leahy拒絕。因此，目前Committee主要是要調查DOJ的政策，是否有政治不當影響DOJ應有的法律決定情形。
其中八位革職的檢察官中據信有些到國會作證表示:其相信拒絕涉有政治動機的起訴是導致其等遭解職的原因。但是DOJ否認有此等事情。
<焦點人物>
在8位US Attorney中被革職的，包括了 2002年由BUSH任命的加州聯邦檢察官、 47歲華裔Carol Lam(中文譯為:林劍華)。民主黨議員質疑，Carol Lam被革職的真正原因，是她在2005年以受賄罪名起訴共和黨籍的加州眾議員Randy "Duke" Cunningham(坎寧漢)。因為Carol Lam(林劍華)擔任聖地牙哥聯邦檢察官(相當於台灣檢察長)後，將該市檢察部門的工作重點，由非法移民和販毒案，改為白領犯罪，並曾因指控一間涉嫌向醫生送回佣以換取好處的醫療保健公司，轟動一時。然而其領導的檢察部門工作目標，卻似乎跟美國司法部(DOJ)相左，司法部高層一通電郵中揚言「她忽視國家的優次和地方的需要」、非法移民案件「數量太少」。在Carol Lam(林劍華)起訴共和黨籍的眾議員Randy Cunningham後，把調查擴及Cunningham的友人，2006年5月向司法部申請兩份搜索狀後，美國司法部(DOJ)高級官員新普森馬上就在次日發電郵給白宮副法律顧問凱利，表示「我們在Carol Lam(林劍華)身上碰到真正的麻煩… 應在11月18 日她四年任期屆滿時準備提名別的人」，Carol Lam就在 2006年12月接到革職通知。
除了Carol Lam事件外，另一件布希遭人詬病的事件，是據NPR專訪其中一位被革職的聯邦檢察官，該前聯邦檢察官證實，在其辦理選舉詐欺案件的調查時，有共和黨議員以電話連絡州聯邦檢察官，關心案件調查情形(因為，共和黨懷疑存在計票不當行為，例如一些判刑的罪犯和不合格的選民也參加了投票，使民主黨受益)，但因該名前聯邦檢察官並未在電話中做出承諾，事後卻遭革職。為此，媒體與民主黨議員即懷疑共和黨議員向布希政府抱怨聯邦檢察官，導致了該名檢察官的被解職。這ㄧ連串的懷疑，事後布希也承認，他受到了黨內議員的壓力。
另外今天(2007.3.22)ㄧ位前在DOJ的民權部門(Civil Right Division)工作的官員也在這次NPR2007.3.22電台的專訪中表示，政治確實會影響個案的法律決定。一位在Civil Right Division工作的政府律師(有翻譯為檢察官)尤班克斯，舉出稍早她在一起訴菸草商案件中，政策確實影響最後的"求償建議"的例子。起因於尤班克斯花了五年時間調查消費者控告菸草廠商ㄧ案，許多消費者控告菸草廠商的廣告誤導消費者，特別是在有關所謂「淡菸」方面的誤導，法院審理本案的時間長達八個月，但是就在2005.06本案展開言詞辯論前夕，司法部幾位官員命令尤班克斯將本案的罰金，從1300億美元減少到100億美元，同時命令她在法庭中宣讀一份他們準備好的結辯聲明，她當時表示這根本沒有任何依據，於是她向長官表示你用寫的，我就造你寫的向法官宣讀，2005她就遞出辭呈。
<行政、立法部門的權力之爭> 各方立場
立法: 司法委員會(Commitee也)希望要慎用傳喚的權力( Subpeoenas Power)，不過也表示只有運用Subpeoenas power才可以知道事情最後的真相。
行政1: 白宮表示願意讓白宮官員到國會中進行說明，但表示不能宣誓以及製做紀錄。布希認為這ㄧ事件是民主黨在借題發揮，以行使國會調查權力為名，削弱行政部門權力。 (個人認為:這是BUSH政府看到之前整肅前民主黨總統柯林頓時，自己所運用的手段，引為前車之鑑，所以堅決不讓自己的官員宣誓作證)。
行政2: 而美國司法部(DOJ)則表示開除這些聯邦檢察官(類似台灣的檢察長)是因為這些US Attorney根本不聽從DOJ的政策決定，例如遵守DOJ的移民、恐怖份子政策等，沒有政治忠誠(Loyal Bushies)，表現不佳(Poor Performance)。所以，認為開除這些聯邦檢察官具有正當性。
(因為，美國聯邦檢察官(檢察長)乃隨政黨輪替上下台的，所以ㄧ旦新政黨上臺，總統就會提名總長、聯邦檢察官，再經過參議院同意，歷史上僅發生過一次ㄧ位聯邦檢察官拒絕下台的事件 ; 因此，美國這樣的體系下，講究的是"檢察ㄧ體"，甚至是司法部這起事件的內部email用語都是"政治忠誠度( loyal)"，這是台灣德日司法體系基礎下長期強調、講究"檢察獨立"所難以想像的。)。
<如果官員不作證呢?>
眾議員( Rep. Linda Sanchez)是小組委員會(The subcommittee)主席，她表示:我們非常擔心這樣的淨化(指布希開除聯邦檢察官的"淨化"行為)，單純的讓聯邦檢察官變成政治控制的工具，而非用來管理司法、尋求正義，讓正義可以平等得服務公眾。 "We are greatly concerned that this purge was intended to allow prosecutors to be used as simply one more instrument of political control, instead of to administer justice equal to all."
但是，被問到:如果白宮官員不到Captial Hill 作證又能如何呢? 眾議員Linda表示:這至少顯示了白宮的不當動機(不當解除US Attorney的動機)，這使公眾懷疑白宮政策。
<台灣人的解讀>
看到Linda這樣的解讀，如果此事在台灣，公眾的反應必是ㄧ陣錯愕，問號連連。
兩方不是應該一定不善罷甘休，傳喚不到行政官員，就刪部門預算啊 ! 這是我看這件事情時，的第一刻反應。否則玩了這們久，豈可這樣草草了之?
但是，看看發言人Linda的用語"公眾懷疑白宮政策"，仔細想想，這就不就是爲2008年的總統選舉先預設幾枚炸彈?換言之，大家不信任共和黨啦，民主黨又多了可以操盤的籌碼。
<看看美國政治史 學者觀點>
George Mason University Professor Mark Rozell, author of the book Executive Privilege. (行政官豁免權)作者表示:這有點像是行政權力與立法權力之爭，但是如果不能解決，就必須求之訴訟解決，但是反觀美國幾百年來的政治操作歷史，在提出訴訟(file lawsuit)之前，政客嗎 ! 兩邊就會找出互相讓步、挽救各自面子的辦法了。
大家吵到一定的程度，就適可而止，找出互相讓步的方式。
這實在很難以解讀，個人來試作比方吧。比如，這是第一次爲解職聯邦檢察官開司法委員會，並授權委員會主席可以運用Subpoena Power("傳喚權力")傳喚白宮官員。反之，行政部門也受到若干教訓，下次絕對不敢明目張膽的再一口氣解職八個聯邦檢察官了。
但是，記得~~~這不代表政治運作不會地下化。
Time table:(此部分資料來自NPR之整理)
February 2005:
白宮律師(White House Counsel) Harriet Miers 向司法部長 的首席官員Kyle
Sampson建議解雇 93 位U.S. attorneys.
March 2, 2005:
Sampson 發e-mails 給白宮律師Miers,將U.S. attorneys 分成三類，第一類是有產出的(produced), 管制佳的(managed well),以及顯示出有政治忠誠度的( exhibited loyalty to the President and Attorney General).
Jan. 9, 2006:
Sampson 發e-mails給 Miers建議僅解僱ㄧ部分的聯邦檢察官(a limited number).
March 9, 2006:
布希簽署the USA PATRIOT Act 修正案，其中一條就是授權部長(Attorney General)任命不必經過參議院同意而任命新就任的聯邦檢察官。
May 11, 2006:
Sampson發 e-mails給白宮官員( White House official) William Kelley,討論解雇聖地牙哥檢察官[San Diego U.S. Attorney] Carol Lam(林劍華)ㄧ事。當時Lam正在調查共和黨議員Randy 與共和黨congressman , Jerry Lewis貪污案.
June 2006:
司法部解雇H.E.,換上白宮官員Karl Rove的助理 J. Timothy Griffin。
Sept. 13, 2006:
Sampson發e-mail給Miers警告行政部門要注意Congress就新任職的U.S. attorneys態度，建議，如果站在行政部門的角度，利用新法授權部長(總長)ㄧ法，達到效率、減少政治因素介入白宮政策的影響。
Fall 2006:
Bush與DOJ部長會面， 表達對U.S. attorneys表現的不滿，但表示沒有提供具體姓名給部長( without naming specific prosecutors)。
October 2006:
參議員Sen. Pete Domenici 與眾議員 Rep. Heather Wilson 打電話給U.S. Attorney David Iglesias 詢問新墨西哥民主黨貪污調查 ㄧ事。隨後司法部就將US Attorney David Iglesias 列入解僱名單。
Nov. 15, 2006:
Sampson 發e-mails給 Miers表示:就解雇檢察官ㄧ事我們必須立場一致以抵禦可能發生的政治反彈( "I am concerned that to execute this plan [firing seven U.S. attorneys simultaneously] properly we must all be on the same page and be steeled to withstand any political upheaval that might result. If we start caving to complaining U.S. attorneys or Senators then we shouldn't do it — it'll be more trouble than it's worth.")
Dec. 2, 2006:
Sampson 發e-mails給司法部官員 Michael Elston表示還在等待適當時機(still waiting for green light from White House [to fire U.S. attorneys].)
Dec. 7, 2006:
DOJ同日解僱了七位 U.S. attorneys，這七位的名稱如下: Daniel Bogden of Nevada, Paul Charlton of Arizona, Margaret Chiara of Michigan, David Iglesias of New Mexico, Carol Lam of San Diego, John Mckay of Seattle, and Kevin Ryan of San Francisco.
Jan. 12, 2007:
3位參議員提出法案要求回收權力(Senate authority to oversee U.S. attorney appointments.)
Jan. 18, 2007:
部長( Alberto Gonzales)到 參議院司法委員會作證表示:我從未因為政治因素去變動US Attorney的職務。 (Hear Gonzales' testimony.From NPR)
Feb. 7, 2007:
副部長(Deputy Attorney General) Paul McNulty 到參議院的司法委員會作證表示: 毎一個個案，只要是United States attorney職位出缺時,行政部門會忠實的提出人選並經由參議院同意( confirmed by the Senate) (Hear NcNulty testify.From NPR)
March 6, 2007:
前聯邦檢察官到國會作證，部分表示相信自己是因為政治因素遭革職。
March 12, 2007:
Sampson承認沒有將DOJ與白宮通信過程據實告知DOJ部門。遞辭呈。
March 13, 2007:
DOJ將 相關文件送到國會( Capitol Hill) ，部長當天取消出行計畫並舉行記者會表示不會辭職，雖然錯誤已經犯下(Mistakes were made) (Hear Gonzales apologize.From NPR.)
March 14, 2007:
布希(President Bush)人還在墨西哥訪問，也就此舉行記者會表示:自己確實有與部長通話，這件事情的處理確實較為粗造。
檢察獨立與檢查一體
-從美國司法部開除八位聯邦檢察官ㄧ案看行政與立法之爭
楊婉莉
Wan-Li Yang
03.23.2007
2007年3月14日 星期三
Why American-style Criminal Justice?
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?
1.Taiwan history?
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.
unfinished............
Published By Wan-Li Yang
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?
1.Taiwan history?
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.
unfinished............
Published By Wan-Li Yang
2007年2月19日 星期一
Taiwan criminal justice review
Taiwan Criminal Justice Review
[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.
11.Mandatory Prosecution and Selective Prosecution
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
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
[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
2007年2月15日 星期四
Taiwan Economic-Legal Resources in Cyberspace( By Wanli Yang)
This part of legal research emphasizes mostly business laws under the legal environment in Taiwan and is designed to assist researcher to get free online legal services in various kinds of business transaction in Taiwan.
A. Intellectual Property Office (IPO):
This is an official site and includes the full text of Manual of Patent Examination Procedure, forms, statutes, and many other resources concerning patents, trademarks, copyrights, trade secrets, integrated circuits, and anti-counterfeiting programs.
Though Taiwan slipped out of the number three spot for the number of patents filed with the U.S. Patent and Trademark Office (USPTO) in 2005, but this small island still ranked fourth. By Taiwan Patents database(in chinese version) 、Patents database( in English)、patent online registration、Criteria for Trademark Examination Trademark Examination (in chinese version, try the forum of “圖樣英文”) can find if certain patent or trademark had been registered or not. This website has been well serviced for professional, such as patenter, or private firm for many years.
Try TIPO General Services Guide to find out its on-line service.
B.Fair Trade Commission( Chinese)
Fari Trade Commission (English)
FTC is under the jurisdiction of the Executive Yuan, in charge of competition policy and English translations of Fair Trade Law and economic law in Taiwan, and charged with drafting fair trade policy, laws, regulations, and investigating and handling various activities acts impeding competition, such as monopolies, mergers, concerted actions, and other restraints on competition or unfair trade practices by on the part of enterprises.The decision of FTC also can be found online.
C.APEC Competition Policy & Law Database
Asia-Pacific Economic Cooperation (APEC) is a group of Pacific Rim countries who meet with the purpose of improving economic and political ties and Taiwan is one of APEC members. By this cite International and/or Bilateral Cooperation Arrangements, Decisions of Administrative or Quasi-judicial Agencies and highlighted Judicial Cases in English version can be checked.
D、Intellectual Property Rights in Taiwan
By Wanli Yang
Published Feb. 15,2007
A. Intellectual Property Office (IPO):
This is an official site and includes the full text of Manual of Patent Examination Procedure, forms, statutes, and many other resources concerning patents, trademarks, copyrights, trade secrets, integrated circuits, and anti-counterfeiting programs.
Though Taiwan slipped out of the number three spot for the number of patents filed with the U.S. Patent and Trademark Office (USPTO) in 2005, but this small island still ranked fourth. By Taiwan Patents database(in chinese version) 、Patents database( in English)、patent online registration、Criteria for Trademark Examination Trademark Examination (in chinese version, try the forum of “圖樣英文”) can find if certain patent or trademark had been registered or not. This website has been well serviced for professional, such as patenter, or private firm for many years.
Try TIPO General Services Guide to find out its on-line service.
B.Fair Trade Commission( Chinese)
Fari Trade Commission (English)
FTC is under the jurisdiction of the Executive Yuan, in charge of competition policy and English translations of Fair Trade Law and economic law in Taiwan, and charged with drafting fair trade policy, laws, regulations, and investigating and handling various activities acts impeding competition, such as monopolies, mergers, concerted actions, and other restraints on competition or unfair trade practices by on the part of enterprises.The decision of FTC also can be found online.
C.APEC Competition Policy & Law Database
Asia-Pacific Economic Cooperation (APEC) is a group of Pacific Rim countries who meet with the purpose of improving economic and political ties and Taiwan is one of APEC members. By this cite International and/or Bilateral Cooperation Arrangements, Decisions of Administrative or Quasi-judicial Agencies and highlighted Judicial Cases in English version can be checked.
D、Intellectual Property Rights in Taiwan
By Wanli Yang
Published Feb. 15,2007
2007年2月13日 星期二
free online journal and free online article
I.academic online articles
National Central Library( in English version)
National Central Library(in Chinese version, click English version)
This public library provides online access database, such as the union catalog of major university public library collections in Taiwan, Taiwanese periodicals directory(chinese), current contents of Chinese periodicals, Chinese periodical index, catalog of ROC government publications(chinese) , electronic theses and dissertations(English and e-fulltext by Chinese ), and literary resources, etc. Chinese input software (Big5 Code) needed to search databases.
2.Newsletter of Biotechnology and Law
http://genoipr.law.ntu.edu.tw/ ( Chinese version only)
This online journal was published by National Taiwan University. It includes environmental law, biotechnology, ethics issue, trade and related hot topic.
By Wan-Li Yang
Published Feb. 13
National Central Library( in English version)
National Central Library(in Chinese version, click English version)
This public library provides online access database, such as the union catalog of major university public library collections in Taiwan, Taiwanese periodicals directory(chinese), current contents of Chinese periodicals, Chinese periodical index, catalog of ROC government publications(chinese) , electronic theses and dissertations(English and e-fulltext by Chinese ), and literary resources, etc. Chinese input software (Big5 Code) needed to search databases.
2.Newsletter of Biotechnology and Law
http://genoipr.law.ntu.edu.tw/ ( Chinese version only)
This online journal was published by National Taiwan University. It includes environmental law, biotechnology, ethics issue, trade and related hot topic.
By Wan-Li Yang
Published Feb. 13
2007年2月3日 星期六
The Taiwanese legal research method in cyberspace-B( By Wanli Yang)
A.Resources in Chinese (ps:for online Taiwan legal research resources in English or bilingual, check:http://wanliyang.blogspot.com/2007/01/taiwanese-legal-research-method-in.html)
Taiwan Electornic Periodical Services (TEPS)is an on-line database offering the most full-text Taiwan periodicals around the world. Currently TEPS contains more than 450 Taiwan Periodicals of different subjects. The quantity is continually increasing and can search by English phrase, browse, and print Taiwan periodicals in Chinese version online.
Taiwan Kaohsiung Juvenile Court
http://ksy.judicial.gov.tw/ (click on the "English version" link on the left side of the page)
Juvenile delinquency is treated under special juvenile justice system. Taiwan has special juvenile law, The Juvenile Proceedings Act(JPA), dealing with juvenile crime. JPA was proposed and duly passed in 1962; in 1968 district courts were facilitated with probation officers to provide intervention; in 1970 a juvenile court was instituted within the district court, and in 1971 the JPA was promulgated and implemented; Thereafter the JPA underwent major revision to the current version officially amended on 29 th October 1997. In accordance with the JPA, Kaohsiung Juvenile Court was formally set up on 15 th September 1999 as the first specialized juvenile court in Taiwan .
Victims' Right
Domestic Violence and Sexual Assault Prevention Committee
http://dspc.moi.gov.tw/mp.asp?mp=5 (English Version)
http://dspc.moi.gov.tw/mp.asp?mp=1 (Chinese version)
It provides data bank of Domestic Violence Prevention Law, Sexual Assault Prevention Law, and Sexual Harassment Prevention Law.
Statistical data:
Including sexual abuse crime rate, domestic violence crime rate, legal aid analysis and so on.
http://dspc.moi.gov.tw/lp.asp?CtNode=776&CtUnit=79&BaseDSD=7&mp=1
(Chinese version only)
The Program of Reducing Repeat Interrogation for Victims of Sexual Assault is to prevent second hurt, so that need network coordination , such as facilitating social workers at each local Domestic Violence & Sexual Abuse Prevention Center, providing 24-hr emergency hotline, legal aid, financial aid, education aid and shelter.
(for online Taiwan legal research resources in English or bilingual, check:legal research)
By Wanli Yang
Published February 03,2007
Taiwan Electornic Periodical Services (TEPS)is an on-line database offering the most full-text Taiwan periodicals around the world. Currently TEPS contains more than 450 Taiwan Periodicals of different subjects. The quantity is continually increasing and can search by English phrase, browse, and print Taiwan periodicals in Chinese version online.
Taiwan Kaohsiung Juvenile Court
http://ksy.judicial.gov.tw/ (click on the "English version" link on the left side of the page)
Juvenile delinquency is treated under special juvenile justice system. Taiwan has special juvenile law, The Juvenile Proceedings Act(JPA), dealing with juvenile crime. JPA was proposed and duly passed in 1962; in 1968 district courts were facilitated with probation officers to provide intervention; in 1970 a juvenile court was instituted within the district court, and in 1971 the JPA was promulgated and implemented; Thereafter the JPA underwent major revision to the current version officially amended on 29 th October 1997. In accordance with the JPA, Kaohsiung Juvenile Court was formally set up on 15 th September 1999 as the first specialized juvenile court in Taiwan .
Victims' Right
Domestic Violence and Sexual Assault Prevention Committee
http://dspc.moi.gov.tw/mp.asp?mp=5 (English Version)
http://dspc.moi.gov.tw/mp.asp?mp=1 (Chinese version)
It provides data bank of Domestic Violence Prevention Law, Sexual Assault Prevention Law, and Sexual Harassment Prevention Law.
Statistical data:
Including sexual abuse crime rate, domestic violence crime rate, legal aid analysis and so on.
http://dspc.moi.gov.tw/lp.asp?CtNode=776&CtUnit=79&BaseDSD=7&mp=1
(Chinese version only)
The Program of Reducing Repeat Interrogation for Victims of Sexual Assault is to prevent second hurt, so that need network coordination , such as facilitating social workers at each local Domestic Violence & Sexual Abuse Prevention Center, providing 24-hr emergency hotline, legal aid, financial aid, education aid and shelter.
(for online Taiwan legal research resources in English or bilingual, check:legal research)
By Wanli Yang
Published February 03,2007
2007年1月28日 星期日
The Taiwanese legal research method in cyberspace-A( By Wanli Yang)
A.Major Online Taiwan Legal Resources
a.Resources in English or bilingual:
(a)Taiwanese Constitution:
http://www.judicial.gov.tw/( click on the "English" link on the top of the page, then click on the Constitution Court on the right side of the page)
Justices of Constitutional Court,Judicial Yuan(English version,EN)、 (Japan version)、(German version/Deutsch)
By 2006, the Taiwanese Constitutional Court had decided over 620 cases. In recent years, members of Parliament have used their power to raise constitutional issue before the Constitutional court,such as personal information protection(No. 603 fingerprint issue). You can check the website as following. Scroll down and serearch “site map”. Choose “interpretation” you can get the whole holding in English version.
Judicial Yaun
You can get not only background information about the Taiwanese legal system from this website, but also get the first hand legal news and valuable statistic from here. Especially, If your expertise is in Chinese Law, East Asia law, and Comparative law and prefer empirical research , go 'statistics' or “Search J.Y. interpretations.”
This is a very comprehensive website that provides a searchable law databank on Taiwan law, judicial decisions and interpretations, statistic, the Administrative Court's precedents, accounting and legal aid, such as legal form online. (free legal form in Chinese version:http://www.judicial.gov.tw/assist/assist03.asp )
The most important and powerful tool for international law lawyer is “線上查詢” that providing law review index Law Review Index(chinese) and The judgements(interpretations) of all district courts and Appeal Court(chinese),that contains the full-text electronic version of the Civil Case, Criminal Case and Administration case, and collects the cases from all courts including Supreme Court, Appeal Court and District Court. The databases can be accessed by various search approaches via its website.
It is free but the language used in this part is only Chinese.
LawBank( in English)
LawBank( in Chinese) (more comprehensive than the English version).
This is a very comprehensive commercial website. It provides a searchable law databank in English version on Taiwan law, judicial decisions and interpretations(chinese), tracking proposed legislation, law review index, academic articles index(chinese) and even almost all kinds of guidelines of every Taiwan departments(in Chinese).
(b) Taiwanese Laws and Regulations
Laws and Regulations Database of The Republic of China
It is a free accessible Internet resource which collects almost all Taiwanese legal document and legal information in both Chinese and English, and provides e-paper service. The website is supervised by The Ministry of Justice and it also contains extensive links to other Taiwanese law related websites and databases available in the Internet. The contents can be searched using its search engine.
Legislation Yuan(English) (Japanese) (Espanol/Spanish)
The Legislation Yuan has two very useful legal research website, one is The Legislation Yuan and the other is :Global Legal Information Network.
Global Legal Information Network.
It is initiated by taking the goal Library of Congress of the United States in order to promote the sharing of global legal information, and supervised by the Legislation Yuan. The public can get almost all the main Taiwanese laws or regulation(legal document) in English version on this website, and it also provides the updated hot issue and the related legal webs.
(C) Others:
①Government Information Office(Taiwan)
From Taiwan Review can get the full text of current issues, such as the conflict among four major ethnic groups and the issues of new immigrants form Mainland China.
The frame of Who We are provides the laws that been governed by this office, such as Radio and Television Act.
The frame of about Taiwan provides the information about the shape of the government under the Taiwanese Constitution、
Democracy and the Electoral System、Economic Ties with China、Public Health and even the most controversial Taiwan-China Relations are included.
The most exciting part is the frame of Periodicals and Ppublications even provide full text of the periodical, such as some tension issue of Say No to China's Anti-Separation Law . Try subscribe your email to receive online Journal.
①National Health Insurance
Department of Health, Executive Yuan(Taiwan)
Bureau of National Health Insurance
Thought both sides of the political spectrum have also looked to more philosophical arguments, debating whether or not people have a fundamental right to health care provided to them by their government. Taiwan already adopted national health insurance (NHI) since 1995 and became one of countries which embrace Universal Health Care –a state in which all residents of a geographic or political entity have access to health care.
Taiwan’s National Health Insurace program has provided complete and proper medical insurance to most of the 23 million people on the island regardless age, income, occupation or background. But growing medical spending has become a burden to the program. Scholars have suggested implementing financial management to prevent the insurance program from becoming a “financial black hole.” There are a lot of hot issues ongoing, such as constitution debates as following:
(a)、Is the provision of the National Health Insurance Act constitutional in requiring that local governments contribute to the subsidy for premium payable by people residing in their respective administrative regions for the national health insurance program executed by the central government? (J.Y.Interpretation No. 550)
(b)、Shall disputes between the Bureau of National Health Insurance and contracted health care providers arising from performance of the contract be regarded as a matter of public law nature and should the solution therefor follow the administrative litigation procedure?(J.Y.Interpretation No. 533)
(c)、Are some provisions of the National Health Insurance Act inconsistent with the doctrine of legal reservation?(J.Y.Interpretation No. 524)
(d)、Is it unconstitutional to calculate premiums payable under the National Health Insurance program according to an insured amount table prescribed by the authority in charge?(J.Y.Interpretation No. 473)
(e)、Are compulsory national health insurance and the imposition of an overdue charge both unconstitutional? (J.Y.Interpretation No. 472)
Other issues, please check national free online dissertations(English version) (chinese version) and use keyword “全民健康”or “National Health” to get free abstract or fulltext.
(3)Taiwan Security Research
This is an academic and non-governmental website. It collected a lot information and full-text papaers on current events relating to Taiwan's security and regional security issues.
By Wanli Yang
Published January 28,2007
a.Resources in English or bilingual:
(a)Taiwanese Constitution:
http://www.judicial.gov.tw/( click on the "English" link on the top of the page, then click on the Constitution Court on the right side of the page)
Justices of Constitutional Court,Judicial Yuan(English version,EN)、 (Japan version)、(German version/Deutsch)
By 2006, the Taiwanese Constitutional Court had decided over 620 cases. In recent years, members of Parliament have used their power to raise constitutional issue before the Constitutional court,such as personal information protection(No. 603 fingerprint issue). You can check the website as following. Scroll down and serearch “site map”. Choose “interpretation” you can get the whole holding in English version.
Judicial Yaun
You can get not only background information about the Taiwanese legal system from this website, but also get the first hand legal news and valuable statistic from here. Especially, If your expertise is in Chinese Law, East Asia law, and Comparative law and prefer empirical research , go 'statistics' or “Search J.Y. interpretations.”
This is a very comprehensive website that provides a searchable law databank on Taiwan law, judicial decisions and interpretations, statistic, the Administrative Court's precedents, accounting and legal aid, such as legal form online. (free legal form in Chinese version:http://www.judicial.gov.tw/assist/assist03.asp )
The most important and powerful tool for international law lawyer is “線上查詢” that providing law review index Law Review Index(chinese) and The judgements(interpretations) of all district courts and Appeal Court(chinese),that contains the full-text electronic version of the Civil Case, Criminal Case and Administration case, and collects the cases from all courts including Supreme Court, Appeal Court and District Court. The databases can be accessed by various search approaches via its website.
It is free but the language used in this part is only Chinese.
LawBank( in English)
LawBank( in Chinese) (more comprehensive than the English version).
This is a very comprehensive commercial website. It provides a searchable law databank in English version on Taiwan law, judicial decisions and interpretations(chinese), tracking proposed legislation, law review index, academic articles index(chinese) and even almost all kinds of guidelines of every Taiwan departments(in Chinese).
(b) Taiwanese Laws and Regulations
Laws and Regulations Database of The Republic of China
It is a free accessible Internet resource which collects almost all Taiwanese legal document and legal information in both Chinese and English, and provides e-paper service. The website is supervised by The Ministry of Justice and it also contains extensive links to other Taiwanese law related websites and databases available in the Internet. The contents can be searched using its search engine.
Legislation Yuan(English) (Japanese) (Espanol/Spanish)
The Legislation Yuan has two very useful legal research website, one is The Legislation Yuan and the other is :Global Legal Information Network.
Global Legal Information Network.
It is initiated by taking the goal Library of Congress of the United States in order to promote the sharing of global legal information, and supervised by the Legislation Yuan. The public can get almost all the main Taiwanese laws or regulation(legal document) in English version on this website, and it also provides the updated hot issue and the related legal webs.
(C) Others:
①Government Information Office(Taiwan)
From Taiwan Review can get the full text of current issues, such as the conflict among four major ethnic groups and the issues of new immigrants form Mainland China.
The frame of Who We are provides the laws that been governed by this office, such as Radio and Television Act.
The frame of about Taiwan provides the information about the shape of the government under the Taiwanese Constitution、
Democracy and the Electoral System、Economic Ties with China、Public Health and even the most controversial Taiwan-China Relations are included.
The most exciting part is the frame of Periodicals and Ppublications even provide full text of the periodical, such as some tension issue of Say No to China's Anti-Separation Law . Try subscribe your email to receive online Journal.
①National Health Insurance
Department of Health, Executive Yuan(Taiwan)
Bureau of National Health Insurance
Thought both sides of the political spectrum have also looked to more philosophical arguments, debating whether or not people have a fundamental right to health care provided to them by their government. Taiwan already adopted national health insurance (NHI) since 1995 and became one of countries which embrace Universal Health Care –a state in which all residents of a geographic or political entity have access to health care.
Taiwan’s National Health Insurace program has provided complete and proper medical insurance to most of the 23 million people on the island regardless age, income, occupation or background. But growing medical spending has become a burden to the program. Scholars have suggested implementing financial management to prevent the insurance program from becoming a “financial black hole.” There are a lot of hot issues ongoing, such as constitution debates as following:
(a)、Is the provision of the National Health Insurance Act constitutional in requiring that local governments contribute to the subsidy for premium payable by people residing in their respective administrative regions for the national health insurance program executed by the central government? (J.Y.Interpretation No. 550)
(b)、Shall disputes between the Bureau of National Health Insurance and contracted health care providers arising from performance of the contract be regarded as a matter of public law nature and should the solution therefor follow the administrative litigation procedure?(J.Y.Interpretation No. 533)
(c)、Are some provisions of the National Health Insurance Act inconsistent with the doctrine of legal reservation?(J.Y.Interpretation No. 524)
(d)、Is it unconstitutional to calculate premiums payable under the National Health Insurance program according to an insured amount table prescribed by the authority in charge?(J.Y.Interpretation No. 473)
(e)、Are compulsory national health insurance and the imposition of an overdue charge both unconstitutional? (J.Y.Interpretation No. 472)
Other issues, please check national free online dissertations(English version) (chinese version) and use keyword “全民健康”or “National Health” to get free abstract or fulltext.
(3)Taiwan Security Research
This is an academic and non-governmental website. It collected a lot information and full-text papaers on current events relating to Taiwan's security and regional security issues.
By Wanli Yang
Published January 28,2007
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