"It is a maxim among these lawyers, that whatever hath been done before, may legally be done again ... In pleading they studiously avoid entering into the merits ... After which they consult precedents, adjourn the cause, from time to time, and in 10, 20, or 30 years come to an issue."
That is Gulliver describing legal trials to one of the Houyhnhnms -- the wise-talking horses in Jonathan Swift's Gulliver's Travels. The bane of protracted and repetitive legal proceedings is one that strikes many legal systems in the world, including Taiwan's.
Hope, however, is at hand. The Judicial Yuan recently took steps to streamline the trial pro-cess. It is doing this by putting forward draft legislation that will largely eliminate the "two trials" system. As reported in the Judicial Weekly (
Put simply, the changes will largely eliminate the "two trial" approach and create a situation of "one case gets one trial." This is a rational and positive move that deserves the legal community's and the public's support.
The problem arises because the court system has three levels; the district court, the High Court and the Supreme Court. The district court is the trial-level court, which hear witnesses, examine documents and physical evidence and comes to a decision as to what the facts are. This process is inherently time-consuming and, as a result, money consuming. A trial court then applies the law to the set of facts it has determined to be true and comes to a verdict.
The confusion and waste of resources comes at the High Court level. The High Court is a hybrid of a trial and appeals court. If one side is not pleased with the verdict of the district court -- it can appeal to the High Court. In the past in the High Court, the appellant would be granted a trial de novo -- a new trial -- as a matter of course. What this meant was that most cases involved two full trials; one in the district court, another in the High Court.
This system has many problems. From a taxpayer's perspective, a system of two trials is an obvious waste of tax money. But duplication of effort is part and parcel of Taiwan's criminal justice system as a whole. From a litigant's perspective, the two-trials system means higher costs, longer delays, more uncertainty; simply more grief. Certainly from a taxpayer's and from a litigant's perspective the elimination of the two-trials system will be a welcome move.
A less obvious problem is that a case can end up going to the Supreme Court with what amounts to two sets of received facts. Thus the Supreme Court can end up trying to decide a case in which the district court and the High Court did not come to the same conclusions about what the facts are. Then the case bounces back and forth until some set of facts is finalized. From a legal perspective this simply does not work.
The new amendments will, one would hope, eliminate most of the two-trials cases. Article 366 will be amended to allow a second trial in only a limited number of circumstances. The changes will serve to make the High Court exclusively an appellate court that limits its reviews to the application of the law by the lower court. The High Court will not be in the business of redoing the fact finding that is the proper purview of the trial court.
For all these reasons the Judicial Yuan's plan deserves quick passage within the Legislative Yuan and will be a welcome streamlining and clarifying of the trial process.
Perhaps, with the new system, not all cases will take the 10, 20 or 30 years that Gulliver describes to "come to an issue."
Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues.
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