Mon, Apr 17, 2017 - Page 6 News List

Making the lawyers obligatory is unfair

By Lee Yung-ran 李永然

The Chinese-language United Daily News published an article titled “Litigation costs to surge: National affairs conference on judicial reform passes resolution on mandatory legal representation.”

In passing the resolution on April 10, the conference adopted a conclusion of the 1999 national conference that favored implementation of a comprehensive legal representation system.

In other words, from the first to the third instance, there should be “mandatory representation by a lawyer” in court.

If the nation adopts such a system, it would significantly raise the public’s litigation costs.

According to Article 466-1 of the Code of Civil Procedure (民事訴訟法) and Article 241-1 of the Administrative Litigation Act (行政訴訟法), an appellant shall appoint an attorney as their representative in the appeal to a high court of second instance or a high administrative court.

Both the high court and the high administrative court operate based on “trial of law” (法律審), so an appellant must specify how the original ruling fails to comply with the law when providing reasons for the appeal.

This requires a certain level of legal expertise: In order to protect an appellant’s rights while giving full play to “trial of law,” requiring representation is appropriate.

Article 31 of the Code of Criminal Procedure (刑事訴訟法) states that, in certain conditions, the presiding judge “shall appoint a public defender or a lawyer to defend the accused if no defense attorney has been retained.”

A criminal trial focuses on evidence and cross-examination; the accused is confronted by a prosecutor or a legal representative with profound legal knowledge.

Defendants without a lawyer might be unable to defend themselves, since they are not equally armed. Therefore, it seems necessary for the presiding judge to appoint a lawyer.

However, since the party involved knows the case best, a mandatory lawyer might not always be necessary if defendants choose to defend themselves for financial reasons.

If overall mandatory legal representation is adopted without considering the types of cases or the financial conditions of the parties involved, then people still need to pay attorney’s fees in relatively minor or simple cases.

The economically disadvantaged would need to hire a lawyer to even file a lawsuit, so it would not only increase litigation expenses, but also hurt people’s equal right to court litigation.

This contradicts Article 16 of the Constitution, which states that “the people shall have the right of instituting legal proceedings.”

Although mandatory legal representation could help court litigation proceed smoothly, Taiwan’s social context needs to be taken into consideration.

I suggest that the government should start from two aspects:

First, it should fix the loophole in the Code of Criminal Procedure that does not require mandatory legal representation in the third instance. This would prevent cases being finalized when a judge rejects an unlawful appeal filed by an accused who lacks legal expertise.

Second, it should advise the public to hire lawyers to represent them in “trials of fact” (事實審). If more complex cases are represented by lawyers, courts would become more efficient.

The purpose of judicial reform is to rebuild trust in the judiciary. The right way to proceed is to address what has caused the lack of trust, such as judicial officials’ misconduct in a few cases, lack of expertise and even political intervention in some trials.

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