Legalinstitutions

4.1 Law-making authority

There are five branches of government in Taiwan: the Executive Yuan,⁷ the Legislative Yuan,⁸ the Judicial Yuan,⁹ the Examination Yuan¹⁰ and the Control Yuan.¹¹ The usual meaning of the term yuan is courtyard.

7 For more information, see Executive Yuan, Republic of China (Taiwan).

8 For more information, see The Legislative Yuan of Republic of China.

9 For more information, see Judicial Yuan.

10 For more information, see Examination Yuan ofROC.

11 For more information, see The Control Yuan of the Republic of China.

Constitution to name the five branches of government. Separating examination and control powers from the other three branches derived from historical expe­riences and a belief that the public employment system through the examination process should be independent from the executive branch to guarantee fairness of recruitment of public servants and their equal treatment being recruited. It was also considered that an impeachment function independent from the legisla­tive branch would ensure effectiveness and prevent an uncontrollable legislative body from developing.

According to art 62 of the Constitution, the Legislative Yuan is the highest legislative body of the state, comprising of members (or �legislators') elected by the people who exercise legislative powers on their behalf. The powers include decisions onstatutoryorbudgetaryBills orBills concerning martiallaw, amnesty, declaration of war, conclusion of treaties, and so on. It is worth mentioning the electorate system for the legislators ofTaiwan. The system has gone through some changes. Prior to the constitutional amendment of2005, multiple representatives were elected from each district in an election, with a certain proportion reserved for female candidates.

In addition to the Legislative Yuan, there used to be a National Assembly^[257] enjoying certain functions exercised by legislative congresses in other countries. It used to exercise political powers on behalf of all citizens (art 25 of the Con­stitution), with the following functions (art 27 of the Constitution): (1) to elect the President and the Vice President; (2) to recall the President and the Vice President; (3) to amend the Constitution; and (4) to vote on proposed constitu­tional amendments submitted by the Legislative Yuan by way of a referendum. In 2000 a constitutional amendment repealed the National Assembly's power to elect the President and Vice President of the Republic. The amendment also removed the National Assembly as a permanent organ of the state. Under the amendment, the National Assemblywas to convene, on a provisional basis, only when there was a need to vote onproposed constitutional amendments, proposed changes of the Republic's territory and on an impeachment proposal against the President or the Vice President submitted by the Legislative Yuan.

In June 2005, anad hocNational Assemblywas convened and the Constitution was further amended to end the application of arts 25-34 of the Constitution concerning the National Assembly. Thus, the National Assembly was abolished pursuant to the June 2005 constitutional amendment. This has fundamentally changed the constitutional structure.

4.2 Bodies interpreting the law

Established pursuant to art 77 of the Constitution, the JudicialYuan is responsible for the trial of civil, criminal and administrative cases, and the imposition of disciplinary action against public functionaries.

In terms of interpreting the Constitution, under art 78, the power is carried out by the Council of Grand Justices, composed of 15 Grand Justices. The Council of Grand Justices under the Judicial Yuan is a very important feature of the legal system in Taiwan.

The Council is not exactly like a court. Normally, a court must rule on disputes arising from a particular set of facts, and if there is only a hypothetical question, the court does not have any real dispute to decide. However, the Council must give its views on questions raised by various government agencies or individuals, not necessarily linked to any particular set of facts. The Council is vested with the power to render two kinds of interpretation: the interpretation of the Constitution and the unification of interpretation of laws and regulations. A vital role is played by the Council in the practice and operation of the legal system of Taiwan, especially in improving the protection of human rights through declaring certain legal provisions unconstitutional.

The Council of Grand Justices has intervened, although not very often, in the legislative process. This has functioned to guarantee certain minimum require­ments for the legislative process. For instance, in JY Interpretation No. 342 of 8 April 1994 the judicial body decided to refrain from intervening too deeply in the legislative process, while still requiring the legislature to exercise its power in a manner not constituting any apparent violation of the Constitution.

The Legislative Yuan shall review bills and enact laws in a way that they do not conflict with the Constitution and are in accordance with the rules governing procedures of meetings enacted by itself. Whether the Legislative Yuan has passed a bill, which the President has later published, shall be a matter of internal affairs of the Legislative Yuan and belongs to the scope within which the Legislative Yuan should decide by itself under the principle of self-discipline. It shall not be subject to the review of the Council with regard to whether the rules of procedure had been observed, unless there is an apparent violation of the Constitution. It follows that when the President has published a law in accordance with Article 72 of the Constitution (after having received the bill from the Legislative Yuan), it is formally in existence and is legally effective under the Standard Actfor Laws and Rules irrespective of its lack of conformity with the rules of procedure. However, if there is such an apparent violation of the Constitution without the need of any further investigation of the factual situation as to the existence of the violation, that is, if there is an apparent and important defect with regard to the basic requirements for the establishment of a law, the body responsible for the interpretation of the Constitution shall be in a position to declare the law invalid. If there is a dispute as to whether the defect has been significant enough to affect the establishment of a law and if an investigation is needed, such defect cannot be considered as apparent. Under the current system, the power of the body responsible for the interpretation of the Constitution to investigate such facts is still subject to limitation. Such matter should thus be resolved under the principle of self-discipline within the Legislative Yuan.

In an extremely rare situation, the Council has even intervened in a constitutional amendment process. In 2000 a dispute arose about whether the National Assem­bly should be abolished or transformed into an ad hoc National Assembly.

The Constitution is the fundamental law of the State, the amendment of which greatly concerns stability of constitutional order and the welfare of all people of the State. An amendment to the Constitution shall be carried out by the body responsible for the amendment in due course. Also the amendment of the Constitution is the most direct realisation of people’s sovereign power over the State. It shall be performed in a transparent manner to meet the requirement of rational communication with the people so as to obtain justifiable foundation in a constitutional nation... It follows that paragraph 2 of Article 38 of the Rules of Procedure concerning secret voting enacted in accordance with paragraph 9 of Article 1 of the Amendment of 1 August 1994 must be limited in its application when it is related to the adoption of an amendment to the Constitution during the reading process. Also the amendment to the Constitution is one of the constitutional acts. If there is any important and apparent defect, it should not have any legal effect as originally contemplated... The process of the amend­ments to the Constitution passed by the National Assembly through three readings on 4 September 1999 violated the above-mentioned principle of transparency and did not conform with paragraph 2 of Article 38 of the Rules of Procedure of the National Assembly then in effect. According to the official minutes and stenographic records, the defect was so apparent without any need of further investigation. Under such pro­cess, the people would not be able to learn how the Constitution is amended by the National Assembly... Such amendment to the Constitution involved an apparent and important defect and violated the fundamental norms governing the effectiveness of constitutional amendments.

Note that the Council of Grand Justices has two roles to play. It must decide and issue Interpretations of the Constitution and unify the interpretations of laws and regulations. It must sometimes act as the Constitutional Court in particular cases under the 1948 Law of Interpretation Proceduresfor Grand Justices, as amended. If the goal or the activity of a political party endangers the existence of the ROC or the constitutional order of a free democratic system, the competent authority may file an application with the Constitutional Court of the Judicial Yuan to dissolve the party. However, it has never before occurred.

4.3 Adjudication bodies

Ordinary courts

The ordinary court system in Taiwan has three levels:^[258] the District Court, the High Court and the Supreme Court. Each court is headed by a chief judge, each of whom has the responsibility of handling administrative matters in his or her court.

In essence, each county or municipal city has one district court and thus in most cases district boundaries follow county boundaries. However, some have more than one district court. For instance, Taipei District Court, Shilin District Court and Panchiao District Court are all in the greater Taipei area. There are altogether 20 district courts in the Taiwan area, which covers the main island of Taiwan and other smaller islands of Penghu, Kinmen and Matsu.

The District Court is in general a court of first instance. For small claims or simple cases,^[259] there are �simple procedure' divisions (or �summary' divisions) in every District Court. The total number is 45. Somejudges of these divisions are assigned to handle the �simple' and small claims cases. Appeals from the decisions are made to the District Court which has the �simple procedure' divi­sion. Generally, cases in District Courts are handled by a single judge, with the exception that cases with greater importance are heard and decided by a panel of three judges.

Unlike the jury trial system, which is considered a fundamental part of the Anglo-American dispute resolution process, there is no similar process in Taiwan. Judges of first and second instances in Taiwan decide all aspects of the facts and legal issues.

The judgments of the District Court may be appealed to the High Court. Legally, there is only one high court, that is, the Taiwan High Court. Others are called branches, including the Taichung Branch of Taiwan High Court, the Tainan Branch of Taiwan High Court, the Kaohsiung Branch of Taiwan High Court, the Hualien Branch of Taiwan High Court and the Kinmen Branch of the Fukien High Court. As a matter of practice, the branches are no different from the Taiwan High Court in their status and functions. The High Courts are required by law to review factual and legal elements of the judgments made by the District Courts. The parties are in principle allowed to submit new factual and legal arguments or rebuttals to support their appeals or defences. For every case, there is a panel composed of three judges handling that particular case, one of whom conducts preliminary proceedings.

The Supreme Court serves as the court of last resort in reviewing the legal elements of decisions of the High Courts. Any case taken to the Supreme Court is decided by a panel of five Supreme Court judges who jointly render their decision. It is likely that different panels will have different views on the same issue; thus it is sometimes necessary to coordinate these different views at the general meetings of panels.

Parties to a civil case are generally allowed to make their appeals as of right to the Supreme Court as long as the amount in dispute exceeds the threshold (currently NT$1500 000) and there is an error in law involved in the High Court judgment. Thus, as a general principle, there is a �three-level and three- instance system', under which a matter will in principle be reviewed three times before there is final disposition of a case. Disputes involving a monetary value below the threshold amount are not qualified to be reviewed by the Supreme Court; for these cases, the �three-level and two-instance system' is exceptionally applied.

Unlike the District Courts and the High Courts, which decide both fact and law, the Supreme Court reviews exclusively questions of law. It does not review questions of fact, unless the finding of the fact resulted from non-conformity with rules of evidence. Under this circumstance, the Supreme Court may refer the case back to the High Court to be reheard.

Administrative courts compared with ordinary courts

The term ordinary court refers to the District Courts, the High Courts and the Supreme Court, which are responsible for the hearing of civil and criminal cases. In addition to these ordinary courts, there are administrative courts established to decide administrative disputes. The administrative relief system in Taiwan is very different from the administrative systems of most other countries. Prior to 1 July 2000 most administrative decisions could be reviewed by an �administra­tive review committee' of the higher agency (or of the agency which rendered the decision) and then by another administrative review committee of an even higher agency. There were two administrative reviews for a case before it could be appealed to the administrative court.

A change in the administrative review system occurred in 2000. The Admin­istrative Litigation Law set up two levels of administrative court: the Supreme Administrative Court and the High Administrative Courts. The Supreme Admin­istrative Court only reviews questions of law, while the High Administrative Courts review questions of both law and fact. There is no longer a second admin­istrative review by an administrative review committee. In other words, after the first review by the administrative review committee, a private party who objects to the decision of the committee may file an appeal with a High Administra­tive Court. In some situations, the parties may even directly appeal to the High Administrative Court without having prior recourse through an administrative review.

Because the administrative court system is separate from the ordinary court system, the distinction between jurisdictions may be problematic. For example, a bidder may be refused participation in a government project for reasons that the procuring agency considers important. Suppose it were later found that the procuring agency should not have refused the qualification of the bidder, and the bidder may then decide to file a complaint pursuant to the Government ProcurementLaw. The bidder is then allowed to appeal the decision arising from this to the administrative courts. The problem is whether the bidder may ask for compensation for the procuring agency's wrongful decision using this kind of administrative litigation, or whether the bidder should bring a civil action to claim compensation. This issue is subject to different views and in need of further decision by the courts.

Some improved features of the court system in Taiwan

Thejudicial system is still the most important method used by parties to resolve their disputes. Some frequently mentioned shortcomings of the judicial system in Taiwan have been the need for special knowledge by judges to deal with special cases and delays in the judicial process.

An increasing number of international commercial and intellectual property right disputes are litigated in the courts of Taiwan. The Judicial Yuan therefore decided to establish special divisions to deal with such matters. In many District Courts, there are judges who are specially appointed to handle disputes involving international trade, international investment, intellectual property, and so on. Since most of these specially appointed judges possess previous relevant educa­tion and have been dealing with cases in related fields for some time, it is widely expected that their expertise may bring about more appropriate and just results for cases of an international or specialised nature.

On 1 July 2008 the Judicial Yuan established the Intellectual Property Court to handle intellectual property cases of a civil, criminal and administrative nature. The matters handled by the Intellectual Property Court include civil disputes of first and second instances concerning the protection of intellectual property rights under Taiwan's intellectual property legislation.^[260] It also handles criminal offences violating the protection of trade marks, trade name, and place of origin under the Criminal Code 1935, cases concerning violation of the TrademarkAct or CopyrightAct and certain Fair TradeAct offences, as well as appeals against the decisions of the first instance rendered by an ordinary district court. In terms of administrative cases, its jurisdiction covers the first instance of administrative disputes concerning rights arising under the intellectual property statutes as well as relevant compulsory enforcement matters.^[261]

Further, in recent years the Judicial Yuan has initiated programs to improve the judicial process. Measures taken to improve the quality and efficiency of judicial decisions have included continuing education forjudges covering spe­cial topics, schemes to evaluate the performance of judges, and the reduction of caseloads for judges. New provisions have also been introduced to restrict submission by parties to a civil case of new factual arguments or evidence in the second instance so as to oblige the parties concerned to make greater effort dur­ing the District Court process.^[262] This is intended to contribute to a more efficient resolution of cases.

Independence of judges

Independence of judicial function is of great importance in guaranteeing the proper resolution of cases and safeguarding the Constitution. Still, the scope of independence of the judiciary is a matter which merits some discussion.

An issue arose as to whether the meaning and scope of independence of the judge included the protection of the positions of judicial administration assumed by judges. The Council of Grand Justices tried to distinguish between the function of judges in deciding cases and the function of judges in facilitating judicial administration. In its JY Interpretation No. 539 of 8 February 2002, the Council stated:

Article 80 of the Constitution provides that: �Judges shall go beyond any influence by political parties or factions; they shall decide cases independently in accordance with the laws and shall be free from any outside interferences.’ This provision not only declares judicial independence, but also requires the State to establish a complete judicial system to ensure the maintenance of the function of judicial independence. Also, Article 81 provides: �Judges shall have a lifetime appointment. Unless a judge is subject to criminal or disciplinary disposition, or is declared to be under interdiction, he shall not be removed from his office. Unless in accordance with law, he shall not be subject to suspension from duties, transfer from post, or reduction in remuneration.’ This is to ensure judicial independence through the protection of the status of judges. According to this provision, any personnel administrative measure that could affect the status of judges and the rights or legal interests that should be enjoyed by judges need to be carried out in accordance with legislation. However, it does not mean that all of these matters would have to be provided by the Constitution. If there is a matter of administering personnel affairs not concerning the status of judges, nor concerning their rights or legal interests, there is room for reasonable measures for the purpose of judicial administrative monitors of judicial affairs to the extent that there is no breach of judicial independence.

According to the Organic Law of the Courts and the Organic Law of Administrative Courts the chiefs of the panels established within the courts of different levels are appointed from among judges or presidents of the courts (who are also judges) as their concurrent posts. Also according to Articles 15 and 16 ofthe OrganicLaw ofthe Courts, the chiefs of the panels of the courts are to supervise the matters of the panels, which are auxiliary judicial administrative matters to facilitate judicial functions. The chiefs may serve as the presiding judge on a panel. However, if there is no chief of a panel or if he is not available, a senior judge maybe appointed presiding judge. The chief judge serving as the presiding judge on a panel has the power to direct the proceeding of the case. In addition to such power, there is no difference between the presiding judge and other judges of the panel. The post of a presiding judge is designed for the purpose of conducting the proceedings of the lawsuit uniformly. It differs from the post of a chief judge, which is administrative in nature. It follows that the presiding judge and the chief judge are two posts with different functions. Article 81 of the Constitution, which protects the status of judges, should be confined to protecting judges who are responsible for the independent exercise of their judicial functions. It must not extend to the protection of the status of the chief judges who are responsible only for judicial administrative matters. Also, although the judges having concurrent posts of chief judges are granted a greater range of powers and duties than those of other judges without such concurrent jobs, and the ranking of those judges having concurrent posts of chief judges are higher than those of others, their original posts are subject to the same range of ranking. There is no difference between the legal rights and interests enjoyed by each.

The letter... issued by the Judicial Yuan provides that upon the expiration of the terms of office of chief judges, they shall discontinue such concurrent jobs. This is only to remove the concurrent administrative jobs of chief judges. This in no way affects the function of the original post of judges. Neither has there been any adverse effect on the degree, ranking and emolument. It is only about an adjustment of administrative business. The necessary discretion made by the judicial organ based upon its power vested under its organic law and the order issued thereupon does not violate Article 81 of the Constitution requiring the protection of the status of judges. A sound mechanism that surrounds the assistance offered the judicial function is a necessary condition to ensuring fair and effective court proceedings. The judicial administrative matters concerning court proceedings are part of the mechanism. The posts of chief judge have such positive function in supervising and handling the administrative matters of their respective panels. In order to put into effect the principle provided under Article 82 of the Constitution requiring the rules governing the organic arrangement to be prescribed by legislation, also for the purpose of establishing a sound and independent judicial system, it would be more appropriate to have a comprehensive plan to maintain the independence and autonomy of the judicial function (as indicated in JYInterpretation No. 530 issued by this Yuan) and to have a piece of legislation, instead of only a regulation, to regulate the matter.

Judicial declaration of unconstitutionality of law

The importance of judicial independence requires a fundamental guarantee to that effect in the Constitution. Article 80 of the Constitution requires that judges shall be above partisanship and shall, in accordance with law and free from any interference, hold trials and decide cases independently.

In order to maintain the supremacy of a constitution and to secure the inde­pendence of judges in exercising judicial power, a judicial mechanism is needed to review whether any law, administrative regulation or measure is in con­formity with the specific requirements, the principles and even the spirit of a country's constitution. There are essentially two responses to this need. The first response is to establish a Constitutional Court, a constitutional tribunal, a consti­tutional commission or other similar judicial body under the constitution which is vested exclusively with the power to declare the unconstitutionality of laws, regulations and measures. Germany and Austria have adopted such systems. The Council of Grand Justices in Taiwan has a similar arrangement. A second response is not granting exclusive power to a single judicial body. Rather, the power is granted to the ordinary courts based upon judicial practice (such as in the United States) or based upon explicit constitutional provisions (such as in Japan).

Articles 171 and 173 of Taiwan's Constitution provide that any law that is inconsistent with the Constitution shall be null and void; that when doubt arises as to whether or not a law is inconsistent with the Constitution,itshallbereferred to the judiciary for interpretation; and that the interpretation of the Constitution shall be made by the Judicial Yuan through the Council of Grand Justices. Thus it is apparent that the Judicial Yuan has the power to declare a law unconstitutional. But it is not very clear in the Constitution whether the different levels of courts also have such power to carry out constitutional review, that is, to decide the constitutionalityoflaws and regulations. There is a negative view towards vesting the power in the different levels of courts. Such a view rests on the provision in art 171, para 2, which grants the power to interpret the Constitution to the Judicial Yuan.

A contrasting view is that the courts do have such power to review the consti­tutionality of laws and regulations. An interpretation issued by the Judicial Yuan on 15 July 1948 (Yuan-JeiNo. 4012) states: �The courts may decide an adminis­trative regulation invalid and refuse to apply such regulation if it is inconsistent with the Constitution or a law.' It follows that the courts may also hold that a law is invalid and refuse to apply such a law if it is inconsistent with the Constitu­tion. Also according to this view, art 171, para 2 only gives exclusive power to the Judicial Yuan to strike down unconstitutional laws and regulations. It is not intended to grant an exclusive power to the Judicial Yuan to exercise the review of constitutionality of laws and regulations.

Although art 80 of the Constitution requires judges to decide cases in accor­dance with laws, and judges are not explicitly vested with a power to strike down any law, they still have the power to review whether a particular legal provision is in violation of the Constitution. JYInterpretation No. 371 states:

The Constitution is the supreme law ofthe State. Legislation shall be considered invalid if it departs from the Constitution. If there is doubt about whether the law departs from the Constitution, it shall be interpreted by the Grand Justices of the Judicial Yuan. This principle is so clearly provided in Articles 171, 173, and 78 and paragraph 2 of Article 79. Furthermore, it is also clearly stipulated in Article 80 ofthe Constitution that judges shall decide cases in accordance with laws. It follows that judges shall apply legally enacted laws as the basis of their decisions and that they are not in any position to refuse to apply a law because of the belief that the law contradicts the Constitution. However, since the Constitution is superior in its effect over legislation, judges are required to observe the Constitution as their foremost duty. Thus if, when hearing the cases, it is reasonable for the judges to believe that the law to be applied violates the Constitution, the judges shall be permitted to apply first for interpretation of the Constitution to resolve the doubt. If this situation arises, the various levels of court may consider this to be a prerequisite and suspend the procedures of the cases and then submit objective and concrete reasons to apply to the Yuan for an interpretation...

The current provisions of art 5 reflect the spirit set forth by the Interpretation.

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