Taiwan

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Contents

LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background

In 1949, following the communist victory in the Chinese Civil War, two million Nationalists fled to Taiwan to establish a democratized government.[1] Led by Chiang Kai-Shek, the Nationalists declared Taipei as the capital of Taiwan, and they built an administration grounded on the 1947 Nationalist Constitution. Under the new regime, Taiwan adopted a presidential system consisting of a head of state—the President, a National Assembly, and five branches of government, namely: the Legislative Yuan, the Executive Yuan, the Judicial Yuan, the Examination Yuan, and the Control Yuan.[2] Originally, National Assembly members selected the heads of states; however, constitutional amendments in 1994 established direct elections as the method of presidential selection. In 1996, Taiwan held its first direct presidential election, inaugurating Lee Teng-hui as President.[3]

Currently, Taiwan is a multi-party state organized into two factions: the Pan-Blue Coalition and the Pan-Green Coalition. The Pan-Blue Coalition favors cross strait unification, whereas the Pan-Green Coalition supports Taiwanese independence over Chinese reunification. Of date, Taiwan’s political status, and the relationship between Taiwan and China, are still subjects of great debate.

Type of System

Derived from the legal systems of Germany and Japan, Taiwan has adopted a civil law judiciary that emphasizes statutes and codes over precedence and case law. Courts rule with the guidance of Six Codes: the Constitution, the Civil Code, the Code of Civil Procedure, the Criminal Code, the Code of Criminal Procedure, and the Administrative procedure laws. The Constitution stands as the supreme law of Taiwan.

The judicial system is composed of several tiers: the Supreme Court, High Courts, District Courts, Administrative Courts, and Special Courts [pertaining to intellectual property and juvenile trial].

Taiwan does not employ jury trials; most criminal cases are presided over by a panel of one or three judges. District Court rulings may be appealed to a panel of three judges either at the District Court or High Court, and a second ruling can be further appealed to a panel of five judges in the Supreme Court. The Supreme Court functions as the final judicial authority for criminal matters, and it takes on a limited number of cases in which lower courts have misapplied the law.[4]

Arbitration is an accepted alternative method of dispute resolution. Written agreements to arbitrate are bound by Courts due to the Arbitration Act of Taiwan. Courts possess the power to reject the enforcement of foreign arbitral award if the award does not comply with the laws of Taiwan, or if the dispute is unable to be arbitrated according to Taiwanese codes.

Legal Aid Situation

I. State Sponsored Legal Aid

In December 2003, Taiwan passed the Legal Aid Act through the support and effort of the Judicial Yuan, Judicial Reform Foundation, Taipei Bar Association, and Taiwan Association for Human Rights. Under the Legal Aid Act, the Legal Aid Foundation [LAF] was established to ensure that disadvantaged groups such as labor groups, women, children, and indigenous individuals are provided legal advice, representation in criminal proceedings, and assistance in legal document drafting. Today, the Legal Aid Foundation has 21 branch offices throughout the country.[5] The Mission and Vision of the Foundation are listed below:

	1.	To seek reform and to enhance the soundness of the legal aid system. 
	2.	To make legal aid available throughout Taiwan.
	3.	To actively publicize legal aid news and information.
	4.	To allow people convenient access to legal aid. 
	5.	To increase the quality of legal aid services. 
	6.	To encourage the participation of lawyers in legal aid and social reform.
	7.	To strengthen the promotion of legal education for disadvantaged people.[6]

II.Number of Lawyers

In 2012, Winkler Partners estimated that in spite of its population of 23 million, there were only 7,000 practicing lawyers in Taiwan. Winkler also estimated that this number was on the rise, as a record high of 964 candidates passed the Taiwanese bar exam in 2011.[7]

Source of Defendant's Rights

National defendants have the right to equality before the law. Chapter II of the Constitution of Taiwan, entitled, “Rights and Duties of the People” lists out due process rights and defendant’s rights. Article 7 holds that “All citizens of the Republic of China, irrespective of sex, religion, ethnic origin, class, or party affiliation, shall be equal before the law.

Under the Constitution, defendants are also guaranteed personal freedom, knowledge of the cause of arrest, right to legal counsel, the right to remain silent, fair investigation, a speedy trial, and just punishment in accordance with fair legal procedures.

The translated text of the laws that guarantee the above due process rights are listed below (Article 8):

I.Right to Personal Freedom

Personal freedom shall be guaranteed to the people. Except in case of flagrante delicto, which shall be separately prescribed by law, no person shall be arrested or detained other than by a judicial or police organ in accordance with the procedure prescribed by law. No person shall be tried or punished other than by a court of law in accordance with the procedure prescribed by law. Any arrest, detention, trial, or punishment, which is not carried out in accordance with the procedure prescribed by law, may be resisted.

II.Right to knowledge of grounds for arrest and right to a speedy trial

When a person is arrested or detained on suspicion of having committed a crime, the organ making the arrest or detention shall inform him and any relative or friend designated by him in writing of the grounds for his arrest or detention, and shall turn him over to a competent court for trial not later than twenty-four hours after his arrest. The arrested person or any other person may petition the competent court to serve a writ on the organ making the arrest to surrender him within twenty-four hours for trial.

III.Fair Investigation

The court shall not reject the petition referred to in the preceding paragraph, nor shall it order the organ concerned to make an investigation and a report on the arrest before surrendering the person for trial. The organ concerned shall not refuse to comply with, or delay compliance with the writ for surrender. When a person is unlawfully arrested or detained by any organ, he or any other person may petition the court to make an investigation. The court shall not reject such a petition and shall, within twenty-four hours, investigate the action taken by the organ concerned and deal with the matter in accordance with law.[8]

Right to knowledge of the cause of arrest, right to remain silent, and right to obtain an attorney are mentioned in greater detail below. They can also be found in Chapter IX Article 95 of the Code of Criminal Procedures. Article 108 addresses limited detention lengths and right to a speedy trial.

The Criminal Code mentions exceptions in the law in cases with juvenile defendants or disabled defendants. Juveniles and handicapped defendants may receive mitigated, reduced punishment under Taiwanese laws:

Article 18 Juvenile law: An offense committed by a person who is under fourteen years of age is not punishable. Punishment may be reduced for an offense committed by a person more than the age of fourteen but under the age of eighteen. Punishment may be reduced for an offense committed by a person who was over the age of eighty.

Article 19 Law pertaining to trial of defendants diagnosed with mental disorders: An offense is not punishable if it is committed by a person who possesses mentally disorder or defects and, as a result, is unable or less able to judge his act or lack the ability to act according to his judgment. The punishment may be reduced for an offense committed for the reasons mentioned in the preceding paragraph, or as a result of obvious reduction in the ability of judgment. Provisions prescribed in the two preceding paragraphs shall not apply to a person who intentionally brings the handicaps or defects.

Article 20 Law pertaining to individuals who are handicapped: Punishment may be reduced for a conduct committed by a person who is deaf and dumb.[9]

Pre trial Procedures

Format of complaint Article 242 A complaint or report shall be made in writing or verbally to a public prosecutor or judicial police officer; if it is made verbally, records shall be taken. To facilitate verbal complaint or report, bells for effecting the same may be installed.

Proceedings If a public prosecutor of judicial police officer in the course of an investigation discovers all or a part of the facts of an offense which may be charged only upon complaint but the complaint has not yet been field, he shall, when the victim or other person entitled to file the complaint appears to testify, interrogate such person whether to file the complaint and shall record the answer. The provisions of sections II through IV of Article 41 and Article 43 shall apply mutatis mutandis to the records specified in the preceding two sections. (Article 242)

Police Procedures

I. Complaint Individuals who may file complaints:

Victims of a Crime:

“A victim of a crime may file a complaint. If a victim is dead, a complaint may be filed by a spouse, lineal blood relative, collateral blood relative within the third degree of kinship, relative by marriage within the second degree of relationship, family head, or family member, provided that the complaint may not be contrary to the clearly expressed opinion of the victim in a case chargeable only upon complaint.” (Article 232-233.) “A statutory agent or spouse of the victim may also file an independent complaint.”(Article 233)


Complaint against personal liberty:

“A complaint may also be filed for the offense against personal liberty specified in Article 298 of the Criminal Code by an abducted person's lineal blood relative, collateral blood relative within the third degree of kinship, relative by marriage within the second degree of relationship, family head, or family member.” (Article 234)


Libel and credit complaints:

“A complaint may be filed for the offense of libel and against credit specified in Article 312 of the Criminal Code by a spouse, lineal blood relative, collateral blood relative within the third degree of kinship, relative by marriage within the second degree of relationship, family head, or family member of a deceased person.” (Article 234)


Cases with Public Prosecutor or authorized agent as Proxy:

“Where there is no person competent to file a complaint, or a person competent to file a complaint is incapacitated from exercising his right of complaint, in a case chargeable only upon complain, the competent public prosecutor may, at the request of an interested party or ex officio, designate a person for filing the complaint.”


Authorized agents may also file complaints, provided that “the public prosecutor or judicial police officer may order the complaint to be present, if necessary.” (Amendment to Article 343).


Timeline:

A complaint must be filed within six months from the day an individual entitled to complain becomes aware of the identity of the offender.

II.Arrest, Search and Seizure laws

Arrests

In cases in which the accused is strongly suspected of having committed the offense, the accused may be arrested with a warrant without summons if: 1.He or she has no fixed residence 2.If he or she has absconded and escaped before, and or if he or she is suspected of possibly absconding 3.If there are sufficient facts to suspect that he or she may tamper with the integrity of the evidence or witness testimony by destroying, forging, altering evidence, or conspiring with a co-offender or witness 4.If he or she has committed an offense punishable with death penalty or life imprisonment, or with a minimum punishment of imprisonment for five years. (Chapter X Article 101)

A judicial policeman or judicial police officer executes arrest warrants. After an arrest, a public prosecutor, judicial official, or policeman, shall notify the suspect and his or her family member of the accused’s right to legal counsel and attorney representation at the earliest stage.

Pre-Trial Detention and Right to Speedy Trial

According to the Code of Criminal Procedures, arrested suspects should be examined at the earliest stage. The public prosecutor is required to apply for a detention order within 24 hours, if he or she deems detention as necessary. Unless a detention order has been applied, suspects should be released as soon as possible. The maximum time period for detention of a suspect is two months during investigation, and three months during the trial stage (Article 108.)

Freedom from Punishment

No restraints may be placed on the body of the accused unless sufficient evidence suggests that the suspect is likely to act violently, escape, or commit suicide. Such restraint shall only be used in the case of urgent necessity, and action shall be referred immediately to courts for approval.

Pre-Trial Detention Conditions

The Code of Criminal Procedure also guarantees humane detention conditions, mandating that public prosecutor shall inspect detention conditions and report the result of inspections to superior officers once in every ten days. Detainees are to be released as soon as the reason for detention ceases to exist.

Searches and Seizures

Chapter XI, Article 122, of the Code of Criminal Procedures addresses search and seizure procedures, allowing search and seizure of individuals, property, electronic record, dwelling, and other premises of an accused” in cases in which there is “probable cause” or when it is “necessary.” Prosecutors may apply for search warrants to the court during the investigation stage. In order for a search to take place, a search warrant, signed by a judge, must be presented. Public prosecuting affairs officials, judicial police officers, and or judicial policemen may conduct the actual search (Article 128.) An accused or a suspect arrested with or without a warrant or detained by a public prosecutor, public prosecuting affairs official, judicial police officer, or judicial policeman, may be searched without a search warrant (Article 130.)

False Confessions Safeguard

The judicial system maintains trial integrity by providing a safeguard against false confessions. If the accused states that his confession was extracted by improper means, his confession shall be investigated prior to the investigation of other evidences; if the said confession is presented by the public prosecutor, the court shall order the public prosecutor to indicate the method to prove that the confession is obtained under the free will of the accused. (Chapter XII Article 156)

The Code of Criminal Procedure also states that the use of evidence obtained in violation of the procedure described by written law and prescribed procedures is determined by balancing the protection of human rights and the preservation of public interests, unless otherwise provided by law (Article 158-4).

Prior to Formal Charge in Court

Prior to the formal charge, police officers and judicial policemen have the right to call the suspect to appear for interrogation for the necessity of investigation. If the suspect does not appear after a notice has been served, the prosecutor may issue an arrest warrant. In an interrogation, an accused is first asked his or her full name, age, native place, occupation, and residence. If a mistake in identity has been made, he or she shall be released immediately (Article 94). As a safeguard, Chapter V of the Code of Criminal Procedure requires that individuals other than the one conducting the interrogation prepare records from interrogations unless the interrogation is documented by audio or video recording or if the said can not be followed due to emergency or practical difficulty.

Right to Non Self-Incrimination

Accused are also notified of his or her rights as well as the reason for questioning. The individual is notified of the charge he or she is suspected of committing at the earliest hour upon arrest. Suspects have the right to remain silent, obtain an attorney and request investigation of evidence favourable to him or her. The accused is also given an opportunity to explain the offense he or she is suspected to have committed (Chapter IX, Article 95).

Right to Counsel

Chapter IV, Article 27 of the Code of Criminal Procedures guarantees that the accused has right to a defense attorney at any time during the interrogation, trial, and detention process.[10]

Rights of the Accused

Presumption of Innocence

Prior to a final conviction through trial, an accused is presumed to be innocent. The facts of an offense are established by evidence. The facts of an offense shall not be established in the absence of evidence. [Chapter XII Section 1, Article 154 of the Code of Criminal Procedures]

Standards of Proof and Standards for Confession

Decisions and convictions also must be dependent on admissible evidence. Chapter XII Article 155 explains that “the probative value of evidence shall be determined at the discretion and based on the firm confidence of the court, provided that it cannot be contrary to the rules of experience and logic. Evidence inadmissible, having not been lawfully investigated, shall not form the basis of a decision. This suggests that the court must be convinced by hard evidence, and that judges must be persuaded in a manner that complies with experience and logic.

Rights in Prisons

Immigrant Detention

According to the US Department of State 2013 Human Rights report, the constitution of Taiwan protects the freedom and movement of foreigners and natives who travel. It provides for “freedom of internal movement, foreign travel, emigration, and repatriation, and the authorities generally respected these rights.”[11]

Right to Medical Care in Prison

In 2013, Taiwan included 65,000 inmates into the National Health Insurance healthcare system, allowing these inmates to share Taiwan’s healthcare benefits alongside the general public.[12]

Restriction of Rights

Family and friends may visit during scheduled times. Prisoners may send and receive mail, though communications are subject to censoring.[13]

Court Procedures

Initial Court Appearance

As established in the Code of Criminal Procedures, Chapter VII Article 63, presiding judge, commissioned judge, requisitioned judge, or public prosecutor designate the hearing dates. Persons concerned are subsequently summoned or notified to appear. Court Summons will include identifying information as well as offense charged, date, time and place for appearance, and that a warrant or arrest may be ordered if the subject fails to appear without good reason.

Trial Lawyers"

In Taiwan, a defense attorney must be a lawyer, unless permission is obtained from the presiding judge at trial indicating that a person who is not a lawyer may be retained as a defense attorney. [Chapter IV Article 29 CCP]

In cases in which the minimum punishment is three or more years in prison, in which a high court has jurisdiction over the first instance, or in which the accused is not able to make a sound statement due to mental in-capabilities, the judge shall appoint a public defender or lawyer to represent the accused. Low-income defendants who have not retained defense attorneys may also request the appointing of a defense lawyer. Chapter IV Article 31

If in the case specified in the preceding section, a retained defense attorney fails to appear without good reason on the trial date, the presiding judge may appoint a public defender. One public defender may be appointed to defend several defendants unless their interests conflict.

After a public defender has been appointed, such appointment may be cancelled upon the retention of a lawyer as a defense attorney.[14]

Witnesses and Expert Witnesses

Witnesses and expert witnesses can be subpoenaed based off of motions filed by a party, an agent, a defense attorney, or an assistant.

Expert witnesses or witnesses shall be examined by the following parties; (1)The party, agent, or defense attorney calling the witness or expert witness shall do the direct examination first; (2)Followed by the opposing party's, his agent's or defense attorney's cross examination; (3)Then, the party, agent, or defense attorney calling the witness or expert witness shall do the redirect examination; (4)Finally, the opposing party, his agent or defense attorney shall make the recross examination. -Article 166 of the Code of Criminal Procedures

After completing the examination as specified in the preceding section, the party, agent, or defense attorney, may examine the witness or expert witnesses again, with the court's approval. After being examined by the party, agent, or defense attorney, the witness or expert witness may be examined by the presiding judge.

If the one and the same accused or private prosecutor is represented by two or more agents or defense attorneys, the said agents or defense attorneys shall choose one of them to examine the one and the same witness or expert witness, unless otherwise permitted by the presiding judge.

If the witness or expert witness is called by both parties, the order of doing the direct examination shall be decided by both parties' agreement; if it can not be decided by such agreement, the presiding judge shall determine it.

Chapter XII, Section 3, Article 198 also mentions expert witnesses, indicating the presiding judge, commissioned judge, or public prosecutor are able to select expert witnesses. An expert witness is defined as: (1) A person who has special knowledge and experience concerning the matter which requires expert opinion; (2) A person who is commissioned by a public office to perform duties of an expert witness.

Judges

In order to ensure that a fair and impartial trial is carried out, the Code of Criminal Procedures calls for the disqualification of court officers in cases in which:


1.The judge is the victim; 2.The judge is or was the spouse, blood relative within the eighth degree of kinship, relative by marriage within the fifth degree of relationship, family head, or family member of the accused or victim; 3.The judge has been betrothed to the accused or victim; 4.The judge is or was the statutory agent of the accused or victim; 5.The judge has acted as the agent, defense attorney, or assistant of the accused or as the agent or assistant of the private prosecutor or a party in the supplementary civil action; 6.The judge has acted as the complainant, informer, witness or expert witness; 7.The judge has exercised the functions of the public prosecutor or judicial police officer; 8.The judge has participated in the decision at a previous trial.

Individuals charged with a crime are able to appeal the sentence in court as stated in Part III, Article 344 of the Code of Criminal Procedures: A party who disagrees with the judgment of a lower court may appeal to the appellate court.

References

  1. http://www.law.edu/ComparativeLaw/Taiwan/
  2. http://www.taiwan.gov.tw/ct.asp?xItem=21507&ctNode=1920&mp=1001
  3. http://www.constitution.org/pd/gunning/taiwan/branches.htm
  4. http://www.bakermckenzie.com/dr/disputeresolutionaroundworld/
  5. http://www.laf.org.tw/en/a1_1.php
  6. http://www.laf.org.tw/en/index.php?action=about&Sn=2
  7. http://www.winklerpartners.com/?p=2397
  8. Taiwan 2005 PDF https://www.constituteproject.org/constitution/Taiwan_2005.pdf
  9. http://en.wikisource.org/wiki/Criminal_Code_of_Republic_of_China_%282010%29
  10. http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=C0010001
  11. http://www.state.gov/documents/organization/220444.pdf
  12. http://www.mohw.gov.tw/EN/Ministry/DM1_P.aspx?f_list_no=378&fod_list_no=4999&doc_no=45239
  13. http://acs.ait.org.tw/arrest.html
  14. http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=C0010001