The question that remains is why an issue that is so controversial and involves the life or death of the defendant should only be argued in the court of third instance instead of the court of first or second instance.
According to Article 289 in the Code of Criminal Procedure, after the investigation of evidence has been completed at both the court of first and second instance, arguments on the law and the facts of the case must be made by the public prosecutor, the accused and the defense attorney, in that order.
However, the same article also states that after the conclusion of the argument, the judge should provide the parties with an opportunity to state their opinions regarding sentencing.
This means not only that the court must conduct arguments both regarding the trial of fact and the application of the law, it must also give the parties the opportunity to give their opinion about sentencing to protect the litigation rights of the defendant.
Because these requirements have always been seen as mere instructions, and because the Code of Criminal Procedure does not clearly separate determination of guilt and sentencing, the sentencing discussion has frequently been ignored in the courts of first and second instance.
The type and length of a sentence has always been up to the judge’s discretion.
Discussions about sentencing, therefore, should not be restricted to the Supreme Court alone, but should also be made a practical part of trials of fact.
Wu Ching-chin is an associate professor of law at Aletheia University.
Translated by Perry Svensson