Legalprofessions
5.1 Appointment of judges and prosecutors
Pursuant to the Judicial PersonnelAct 1989, there are three categories of people who maybe appointed judges and prosecutors. The first is those who have passed the Judicial Examination for qualifying judicial officials and have been through a judicial training program.
The second is lawyers who have practised law for a numberof years, have a good reputation and have completed the judicial training program. Judges appointed in this second way are still limited in number. The ideal goal would be for all judges to have previous experience in the practice of law. The third category is those who have taught law courses at universities. However, it is extremely rare for a law professor to be appointed as a judge in Taiwan, mainly due to the fact that the social status of judges is no higher than that of law professors.Since university graduates are entitled to take the Judicial Examination, a person as young as 24 may become a judge, although it is widely thought that people of this age are too young to decide socially complicated cases. A reform is being brought which will require newly appointed judges to take part in a panel, chaired by a senior judge, to decide cases collectively. Another possible reform is to appoint judges only from experienced practising lawyers so that when judges are appointed they will already have had rich practical experience in law and in social behaviour. The anticipated result of this change is that of greater public trust and respect for the judiciary.
Judges have guaranteed tenure status and adequate pay so that they may focus on performing their duties scrupulously and fully. Ultimately, judges are expected to carry out their duties independently. In addition to such individual independence of judges, there is a need to ensure collective independence of the judicial branch.
One important mechanism is to allow the Judicial Yuan to prepare its independent budget to be submitted to the Legislative Yuan. The constitutional amendment of 21 July 1997 has revised the previous practice, pursuant to which the Judicial Yuan could only submit its budget to the Legislative Yuan through the Executive Yuan. This had caused the Judicial Yuan difficulties with respect to its efforts to seek more resources to support the independent exercise of judicial power. Under the amendment, the Judicial Yuan submits a separate budgetary plan to the Legislative Yuan through the Executive Yuan, which may only add comments before integrating the budgetary plan into the budgetary Bill submitted to the Legislative Yuan.5.2 The Bar
In order to qualify to practise law in Taiwan, a candidate must successfully sit the Bar Examination held by the Examination Yuan. On average, prior to 1989, only about 2 per cent of applicants passed the examination and were granted licences. In some years, less than 1 per cent of applicants passed. After 1989 the pass rate increased to 14 per cent, although in 2000 the pass rate dropped to 6 per cent; in later years the pass rates were approximately 7 or 8 per cent. Some argue that the ideal rate would be approximately 20 per cent, and clearly further adjustment is called for. The fact that it is extremely difficult to pass the Bar and Judicial Examinations in Taiwan has caused some difficulties, even distortions in legal education in the universities. Students focus too much on taking courses that are closely related to the Bar and Judicial Examinations and spend excessive time preparing for these examinations. A large proportion of students also go to preparation schools (cram schools) on a regular basis during their university years. Thus, the law students pay too little attention to courses or academic events that have less of a connection with the Bar or Judicial Examinations. A substantial increase in the numbers admitted to the practice of law could inject more balance into legal education.
After having passed the Bar Examination, the candidate must join a training program before embarking on his or her practice. The program includes one month of participation in preÂarranged intensive courses held by bar associations and five months serving as an articled trainee lawyer to an experienced lawyer.Prior to 30 January 2002, lawyers could register with only four District Courts and practise in those jurisdictions, a limitation criticised by many lawyers and law professors. In 2000 the competition authority (the Fair Trade Commission) expressed its concern that the limitation would severely restrict competition in legal services. An amendment to the LawyersLaw 1941 was passed on 30 January 2002 abolishing the restriction. According to the new art 7 of the Lawyers Law, a lawyer may register with and practise law at any court.
Lawyers must abide by ethical rules passed by relevant bar associations. GenÂerally, when performing their duties, lawyers must observe laws strictly and maintain professional integrity. Lawyers must also refrain from false or other improper ways of soliciting business, and as a matter of course, they must also avoid situations involving a conflict of interests.
5.3 Legal education
Traditionallyin China, law was considered a tool and a means for rulers to govern and control their people. It was, therefore, never the policy in traditional Chinese society to educate people on the law or to allow them to practise law. This did not mean that people were not required to know the law. Rather, if someone breached the law, he or she was still subject to punishment as provided in the codes or as instructed by the rulers whether or not he or she knew the law. The shi-ye,18 people educated and knowledgeable about the law, played a role in helping the county governors decide cases.
According to this Chinese tradition, there was a lack of any form of legal eduÂcation in Taiwan before the Japanese colonial period.
During the colonial years, a few Taiwanese received legal education even in Japan and eventually became judges there. However, modern legal education did not start until the late period of Japanese colonial rule and the early years of the Nationalist Government rule following its takeover from Japan after World War II. Indeed, legal education evolved into its current form consonant with the establishment of National TaiÂwan University and its predecessor, the Taihoku (Taipei) Imperial University, which established the Law Faculty under the College of Liberal Arts and Political Science. AfterWorld War II, the Imperial Universitybecame the National Taiwan University, while the College of Liberal Arts and Political Science was separated into the College of Liberal Arts and the College of Law. The Law Facultybecame the Law Department. This turned a new page on the history of legal education in Taiwan.[263] [264]In early 2004 the number of universities having their own law departments or law institutes had already exceeded 30. In most of these universities, the law departments admit students who only hold high school leaving certificates. Other universities have already adopted a professional school-like legal education sysÂtem, under which only persons with university or higher education in fields other than law may apply for admission to such law institutes and be granted with a Masters degree after approximately three years of study at the institutes. UniÂversities with programs have been able to accept a large number of applicants, many of whom were already medical doctors or holding PhD degrees. This new system should be an important factor contributing to the better quality of the legal profession in Taiwan.
Although some newly established law departments in private universities are unable to offer a wide range of courses covering topical subjects, some older universities, especially public ones, are able to recruit professors with expertise in fundamental and specialised legal fields and offer courses covering new legal issues.
Examples of the specialised fields include legal and economic relations between Taiwan and mainland China, World Trade Organization legal issues, legal aspects of biotechnology, and legal problems concerning electronic commerce and telecommunication.In most law colleges and law departments, the basic courses are conducted for large classes. Indeed some courses have over 300 students in a class. In addition to the larger number of law students, one of the reasons that there are so many students in a particular class is that there are a number of ways for non-law students to take law courses. For example, they can combine law with another field of study for a double major, or they can select law for their minor. If they choose the former, they must meet the same requirements as full-time law department students. If they choose the latter, the students need only complete a specified number of law course credits (for example, 20) in order for their minor to be recognised and awarded.
The format most commonly used in Taiwanese law schools is the lecture, which offers little interaction between professors and students. This is espeÂcially true for the larger classes. Many professors tend to systemise the teaching materials and tell the students what should be the proper understanding or interpretation of the laws. Students are rarely encouraged to think further and develop different views. Nevertheless, some professors still prefer the Socratic teaching method, resulting in considerable interaction between professors and students through the question and answer process.
It must also be noted that legal education in Taiwan plays an important role in the society. Some indicators are of help to illustrate this importance. The law department is still the first choice among high school students for their later studies and a large number of political leaders have law degrees. Another noteÂworthy aspect is that a large proportion of law professors earnt their doctorate degrees in England, France, Germany, Japan and the United States. Professors and scholars tend to be more familiar with legal thinking that has been developed in the countries where they received their further legal and scholarly education. Their educational backgrounds have greatly and deeply enriched Taiwan's legal education.
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