Taiwan

Background

In 1949, following the communist victory in the Chinese Civil War, two million Nationalists fled to Taiwan to establish a democratized government. 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. 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.

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.

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. 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. 

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.

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.

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.

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.