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Achieving Protection of the Right to Litigate under the Constitution — The Legislative Yuan passed the third reading of an amendment to the Code of Civil Procedure

Wen-Ping Lai/Ethan Lin


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 that the following cases are not appealable to the third instance: (i) an offense with a maximum punishment of three years' imprisonment, or detention, or a fine only; (ii) an offense of theft; (iii) an offense of embezzlement; (iv) an offense of fraud; (v) a breach of trust; (vi) an offense of extortion; or (vii) an offense of receiving stolen property.
 
Under Article 376, an accused person who is found not guilty in the first instance but receives a surprise final judgment of conviction in the second instance after the judgment of acquittal rendered in the first instance is vacated in the second instance, has no way to seek relief. Therefore, the Council of Grand Justices issued Interpretation No. Shi-752 indicating that Subparagraphs 1 and 2 of Article 376 of the Code of Criminal were unconstitutional. Nevertheless, the interpretation did not state that judgments of conviction under Subparagraphs 3 through 7 of the same article are unconstitutional, too.
 
To comply with Grand Justices Interpretation No. Shi-752 and allow people to benefit from different trial instances and the protection of the right to litigate under the Constitution, the Legislative Yuan passed the third reading of an amendment to the Code of Criminal Procedure on November 7 to add a proviso to Article 376. According to the proviso, a person who is convicted of a minor offense punishable with no more than three years’ imprisonment and receives a judgment of acquittal, exemption from prosecution, case not entertained, or mistake in jurisdiction from the court of first instance, but is found guilty by the court of second instance after the first-instance judgment is vacated in the second instance, is allowed to appeal against the second-instance judgment to the third instance to seek relief. Accordingly, Articles 253 and 284-1 of the Code of Criminal Code were also amended. 
 
Even though the amendments did not make major changes to the Code of Criminal Procedure, it made a magnificent change to the protection of the right to litigate. Moreover, You Mei-nu, one of the legislators introducing the amendment, indicated that if people who were found guilty in the first instance and were found guilty and received heavier sentences in the second instance were allowed to appeal to the third instance to seek relief, their right to litigate would be given more protection. She said future amendments to the code could move in this direction.
 
The texts passing the third reading of the Legislators (the amended parts are underlined)
 
1.      Article 376 of the Code of Criminal Procedure
 
Once judged by the court of second instance, cases involving the following offenses are not appealable to the court of third instance, provided that where an accused person receives a judgment of acquittal, exemption from prosecution, case not entertained, or mistake in jurisdiction from the court of first instance, but is found guilty by the court of second instance after the first-instance judgment is vacated in the second instance, the accused person or a person who may appeal for the benefit of the accused person may appeal to the court of third instance: (1) offenses with a maximum punishment of three years' imprisonment, or 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; and (7) offense of receiving stolen property under Paragraph 1 of Article 349 of the Criminal Code.
 
Where an appeal against the second-instance judgment is lodged in accordance with the proviso of the preceding paragraph, and the third-instance court sets aside the second-instance judgment and remands the case to the court of second instance, no further appeal may be lodged with the court of third instance.
 
2.      Article 253 of the Code of Criminal Procedure
 
If a public prosecutor considers it appropriate not to prosecute a case specified in a subparagraph of Paragraph 1 of Article 376 after having taken into consideration the provisions of Article 57 of the Criminal Code, the prosecutor may render a ruling not to prosecute.
 
Article 284-1 of the Code of Criminal Procedure
 
Trial for the first instance shall be conducted by a panel of judges, unless the case is one in which summary trial procedure or summary procedure is applied, or concerns a crime under Subparagraph 1 or 2 of Paragraph 1 of Article 376.

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