Home >> News & Publications >> Lee and Li Updates >> Newsletter >> The Draft Amendment of the Administrative Litigation Act: An Additional Clause on Participation of Experts

The Draft Amendment of the Administrative Litigation Act: An Additional Clause on Participation of Experts

Since the Intellectual Property Court ("IP Court") has its own Technical Examination Officers ("TEO"), it is the public's observation that this court has been conservative with the parties’ petition to summon expert witnesses to court. Although, Tsai Hui-Ru, the Division-Chief Judge of the IP Court, explained a new civil procedure trial system for patent infringements of the IP in a seminar held on December 27th, 2014, and stated that the new system will respect parties' petition to summon expert witnesses to court and that expert witness opinions will be taken into consideration to avoid excessive dependence on TEO opinions that may result in biased judgments, there have been a limited number of cases that summoned expert witnesses to court and considered their opinions ever since the implementation of said new system.
Currently, the Judicial Yuan has set up the “Research and Amendment Committee of the Administrative Litigation System". Its conveners and committee members include judicial and academic experts. Since August 4th, 2017, the committee has been meeting intensively. In their 4th meeting on September 8th, the committee resolved to add Part 1, Chapter 2 “Participation of Experts” to the draft amendment of the Administrative Litigation Act (adding Articles 21-1 to 21-8). The Administrative Court (including the Administrative Division of the Intellectual Property Court) can then implement the "participation of expert" mechanism in addition to the expert/institution assessment mechanism in the future. This enhances appropriateness of the court’s decisions on legal and factual issues, protects the parties' interests and strengthens national confidence in the judicial system.
In the past, the Judicial Yuan has already stipulated the "Key Points of Court Consultation of Experts" ("Key Points"), but these points were limited in their scope of application and were simply administrative guidance.This judicial reform will legalize “participation of experts” together with all other reforms. Besides referencing to the Key Points and TEO related provisions in the Intellectual Property Case Adjudication Act and the Intellectual Property Case Adjudication Rules, the Japanese senior executive officer mechanism were also considered for the addition of the aforementioned Part 1, Chapter 2 “Participation of Experts” clauses. This allows the Administrative Court, when hearing a case involving matters of expertise, to, if necessary and after seeking opinions of the parties, determine the details of relevant procedures. In addition, Article 130, Section 1 will also be revised in this Draft Amendment of the Administrative Litigation Act to allow long-distance participation of experts in the proceedings.
However, according to the report announced by the Judicial Yuan on September 13th, 2017, the participation of expert clause differs from the current expert/institution assessment mechanism in whether the opinions are admissible as evidence.Namely, the expert/institution assessment reports/opinions in the current assessment mechanism are admissible as evidence, but an expert in the newly added clauses is only a “Court Consultant” who explains or states his/her opinions to the Administrative Court and explains to or inquires of the parties, witness or appraiser to assist the Court in clarifying the disputed matters, and the expert's explanation or opinion is not admissible as evidence for findings of fact. In intellectual property cases, this may not conform to participant’s goal of establishing expert witness system to be included as evidence, forming one of the findings of fact foundations of judgment so as to counterbalance the opinions of TEOs.We should further investigate future revisions, observe relevant developments and offer suggestions to the aforesaid committee so as to form a more protective litigation system for the parties.