Newsletter
Rulings of the Taiwan Supreme Court Criminal Grand Chamber and the Constitutional Court of the R.O.C. (Taiwan) in March 2022 on Interlocutory Appeals against Rulings involving the Code of Criminal Procedure
I. Taiwan Supreme Court Criminal Grand Chamber Ruling 110 Tai-Kang-Da-Tzu Nos. 427 and 1493
i. According to Article 376 of the Code of Criminal Procedure, criminal cases involving larceny, fraud or offenses that carry a maximum sentence of less than three years’ imprisonment shall not be appealed to the third instance court, in order to lighten the Supreme Court’s caseload. However, a defendant receiving an acquittal in the first instance that is appealed by the prosecutor will not be offered judicial remedies if found guilty in the second instance. Since Article 376 could not adequately protect the defendants' right to litigation, it was amended on November 16, 2017, with the proviso to paragraph 1 and paragraph 2 added. These amended regulations permit, as an exception, an defendant found guilty in the second instance to appeal to the third instance where the defendant was found not guilty, exempt from prosecution, or dismissed from prosecution, or where there was a jurisdictional defect, in the first instance.
ii. Nevertheless, Article 405 of the Code of Civil Procedure states, "No interlocutory appeals shall be filed against a decision made by the court of second instance regarding a case which is not appealable to the court of third instance." It was not amended as Article 376 was, which causes controversies. Therefore, the rulings of the Taiwan Supreme Court Criminal Grand Chamber explicitly state "where the decision of the first instance court was not guilty, exempt from prosecution, or dismissed from prosecution, or there was a jurisdictional defect, and is revoked by the second instance court and a guilty ruling is pronounced," the ruling falls under the proviso to Paragraph 1, Article 376 of the Code of Criminal Procedure as well as the exception in Article 405, and the ruling could be appealed to the third instance one time.
II. Constitutional Court Judgment 111 Hsien-Pan-Tzu No. 3
i. Parts III and IV of the Code of Criminal Procedure stipulate the procedures for appeal and interlocutory appeal. A defendant could file an interlocutory appeal against a detention decision made by prosecutor in accordance with Paragraph 1 of Article 403, reading: "A party may file an interlocutory appeal to the direct appellate court if he/she disagrees with the court ruling, unless otherwise provided." However, there are no stipulations regarding whether counsel for the defense could file an interlocutory appeal for the defendant.
ii. The Constitution Court affirms that to effectively protect defendants' right to litigation, counsel for the defense could file an interlocutory appeal against a detention or remand decision for the interests of the defendant in accordance with Article 419 of the Code of Criminal Procedure, which reads: "Except otherwise stipulated in this Chapter, interlocutory appeals shall apply mutatis mutandis Chapter I of Part III regarding Appeals," and thus apply Article 346 of Chapter I of Part III, which reads: "An agent or defense attorney in the original trial may appeal for interests of the defendant; provided that it may not be contrary to defendant’s express will."