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Achieving Protection of the Right to Litigate under the Constitution Introduction to Judicial Yuan Interpretation No. Shi-752 and the Draft Amendment to Article 376 of the Code of Criminal Procedure



Taiwan's Code of Criminal Procedure is applicable to three trial instances. A person disagreeing with a judgment rendered by the High Court in the first or second instance can appeal to the Supreme Court for reversal of the judgment. However, where a case concerns a minor violation, it will be advantageous to the accused person if the trial is promptly closed and the person can be released from burdensome proceedings as soon as possible. Moreover, if decisions on all criminal cases are appealable to the Supreme Court, the court might have to make rash judgments out of consideration of the court's limited staff and time. Hence, in order to lighten the third instance court's trial docket and allow Supreme Court judges to spend more time on more significant, complicated cases, the Legislative Yuan specified in Article 376 of the Code of Criminal Procedure cases not appealable to the third instance because of their types and nature, the purposes of litigation strategies, the functions of the litigation system, and the efficient use of judicial sources. The current Article 376 of the Code of Criminal Procedure reads, "Once judged by the court of second instance, cases involving the following offenses are not appealable to the court of third instance: (1) offenses with a maximum punishment of no more than three years' imprisonment, detention, or a fine only; (2) offense of theft under Articles 320 and 321 of the Criminal Code; (3) offense of embezzlement under Article 335 and Paragraph 2 of Article 336 of the Criminal Code; (4) offense of fraud under Articles 339 and 341 of the Criminal Code; (5) breach of trust under Article 342 of the Criminal Code; (6) offense of extortion under Article 346 of the Criminal Code; (7) offense of receiving stolen property under Paragraph 1 of Article 349 of the Criminal Code." However, whether the provisions are consistent with the protection of people's right to litigate under Article 16 of the Constitution needs further consideration; otherwise, such provisions might be against the substantive due process of law as they deprive an accused person found not guilty in the first instance but found guilty in the second instance of the right to seek relief through regular statutory procedures.  
 
On July 28, 2017, the Council of Grand Justices issued Interpretation No. Shi-752 regarding a dispute over cases not appealable to the court of third instance under Subparagraph 1 of Article 376 of the Code of Criminal Procedure, which concern accused persons who are found guilty in the first instance and whose appeals to the second instance are dismissed, or who are found guilty in the second instance after the judgments of not guilty rendered in the first instance are vacated in the second instance; or cases not appealable under Subparagraph 2 of the same article, which concern accused persons who are found not guilty in the first instance but are found guilty in the second instance after the judgments of not guilty rendered in the first instance are vacated in the second instance. The interpretation states that the provisions of Subparagraph 2 of Article 376 of the Code of Criminal Procedure do not provide people with a chance to lodge at least an appeal, which is inconsistent with the protection of people's right to litigate provided by Article 16 of the Constitution. If the first judgment finding an accused person guilty is the final judgment, the person will have no chance to seek relief by initiating regular proceedings to request an appeals court reconsider the case. Even though the accused person may petition the court of first instance to reconsider the case or the Prosecutor General to lodge an extraordinary appeal, strict requirements have to be met for petitioning for reconsideration under Article 420 of the Code of Criminal Procedure or extraordinary appeal under Article 441 of the Code, and a high threshold has to be reached to carry out such special proceedings. Moreover, the relief available from such proceedings to people found not guilty in the first instance but found guilty in the second instance after the judgments of the first instance are revoked in the second instance, can hardly be an alternative to the relief vacated from appeals proceedings.
 
In the Grand Justices' opinion, giving an accused person, found not guilty in the first instance but found guilty in the second instance after the judgment of the first instance is vacated in the second instance a proper chance to lodge appeals is at the core of the protection of the right to litigate, and such chance should not be restricted for trial instances at the Legislators' discretion. Forbidding an accused person found not guilty in the first instance but found guilty in the second instance after the court of second instance vacated the judgment of the first instance to appeal the case to the third instance deprives the person of at least one chance to appeal, and such restriction is inconsistent with the protection of people's right to litigate under Article 16 of the Constitution. Hence, such provisions should be invalidated from the date of publication of Grand Justices Interpretation No. Shi-752.  
 
The provisions forbidding an accused person found guilty in the first and second instances or found guilty in the first instance but found not guilty in the second instance to appeal the case to the third instance were enacted within the scope of the Legislative Yuan's discretion and are not against Article 16 of the Constitution as the accused person has had a chance to lodge an appeal or need not appeal. However, forbidding an accused person found not guilty in the first instance but found guilty in the second instance after the court of second instance vacates the judgment of the first instance, to appeal the case to the third instance deprives the person of the chance to appeal at least once and is against the core of the protection of people's right to litigate under Article 16 of the Constitution.
 
It should be noted thatbefore the interpretation was issued, a proposal was made at the judicial reform conference held in June to promptly amend the provisions that allow surprise final judgments of acquittal to be made to reverse judgments of conviction. After such amendment passes legislation, a person found not guilty in the first instance but found guilty in a second-instance judgment that is a final judgment will be able to seek relief by appealing the judgment of conviction to the third instance. 
 
In May 2017, 25 legislators, including Chou Chun-mi, Tsai Yi-yu and You Mei-nu, proposed an amendment to Article 376 of the Code of Civil Procedure by adding a proviso to the article to allow people to benefit from different trial instances and the protection of the right to litigate under the Constitution. The draft proviso reads, "Once judged by the court of second instance, cases involving the following offenses are not appealable to the court of third instance, provided that an accused person found not guilty in the first instance but found guilty in the second instance may appeal against the conviction." The reasons given for the amendment noted, "It is unfair to deny people acquitted in the first instance but convicted in a subsequent instance the right to seek relief by appealing to higher courts. Even though people convicted of minor offenses may seek special relief such as retrial, extraordinary appeal and petition for Grand Justice interpretation, they have difficulty meeting the requirements of the principle of proportionality. However, the proviso should be applicable only to accused people but not public or private prosecutors as those instituting the suit (i.e., public or private prosecutors) already have two instances to prove the accused persons' conviction. Their circumstances are different from those of accused persons who are not allowed to appeal against the judgments of their first convictions. 
 
The amendment to Article 376 of the Code of Civil Procedure proposed by the 25 legislators in May, the proposal in the judicial reform conference held in June, and Grand Justices Interpretation No. Shi-752 issued in July all aim to achieve the protection of the right to litigate under the Constitution and correspond with Paragraph 5, Article 15 of the International Covenant on Civil and Political Rights (reading, "Everyone convicted of a crime shall have the right to have his/her conviction and sentence being reviewed by a higher tribunal according to law"). Such actions for increasing protection of human rights deserve to be praised.

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