Court Services and the Legal Aid System

The Judicial Reform Foundation recently released a court observation report, noting that staff in several district courts received criticism from the observation team for lacking enthusiasm, goofing off, dozing off, or having poor attitudes. Although the criticized courts promptly issued clarifications, the incident highlights a deeper concern: many citizens visit courts primarily seeking legal consultation or information on litigation procedures, making litigation assistance a core focus of court services. However, even with enthusiastic staff or judicial volunteers, court assistance cannot replace a comprehensive legal aid system. People seeking help at courts often require more than preliminary consultation; they may need document drafting, or even legal representation and defense. Unfortunately, those who lack the financial means or proper information to hire private lawyers must turn to the courts. Yet whether it is court litigation assistance, legal service societies at university law departments, or services provided by government agencies and private organizations, these resources are limited to preliminary legal consultations and thus fail to fully meet the legal resource needs of economically disadvantaged citizens.

Currently, Taiwan's legal aid system still lacks a comprehensive framework. Aside from specific targets—such as victims of sexual assault, domestic violence, or women in special circumstances—for whom individual laws provide subsidies for litigation fees, mandatory defense in criminal proceedings is basically limited to defendants facing a minimum sentence of three years or more of imprisonment, cases under the jurisdiction of the High Court as a court of first instance, or defendants unable to make complete statements due to cognitive impairments. In civil proceedings, there is only a system for litigation fee relief, with no aid system for attorneys' representation fees. In recent years, with civil litigation promoting "concentrated trials" and criminal litigation promoting a so-called "modified adversarial system" featuring cross-examination between parties during trials, one must ask: if civil litigants lack legal representation, how can they conduct "issue clarification" during preparatory proceedings when complex legal or factual disputes are involved? Can they truly rely solely on the presiding judge's exercise of the right to clarification? If criminal defendants lack the assistance of counsel, how can they smoothly conduct cross-examination? Therefore, without a comprehensive legal aid system, not only is it impossible to realize the spirit of these litigation systems, but the "principle of equality of arms" in protecting people's right to litigation is reduced to an empty promise!

In recent years, the passing rate of the bar examination has occasionally become the focus of legal professionals' attention. On one hand, the low passing rate—averaging less than 10% annually—has long been criticized; on the other hand, people often overlook where our complementary mechanisms are should the bar passage rate be moderately increased. Although hundreds of newly qualified lawyers entering the market each year have already caused fierce competition in the legal market, if we are to truly realize the protection of litigation rights for economically disadvantaged people and build a comprehensive legal aid system—such as adopting universal mandatory defense in criminal proceedings regardless of the severity of the offense, and adopting mandatory legal representation in civil proceedings for cases exceeding a certain monetary threshold or for family law cases—there is definitely reasonable room for the number of lawyers to grow. Without comparing ourselves to the United States, which adopts a laissez-faire capitalist approach to the legal market, let us instead compare with Germany, our primary legal system recipient state: Germany has a population of 82 million with approximately 110,000 practicing lawyers, whereas Taiwan has a population of 23 million, and while the exact number cannot be precisely estimated due to the registration system, there are around 3,000 to 4,000 lawyers. The comparison between Taiwan and Germany is clearly disproportionate. The reason lies in the fact that Germany has a complete legal aid system, which requires a commensurate number of lawyers to operate. The author had personal experience with this while studying in Germany, having served as a translator between a mainland Chinese individual seeking legal aid and a German lawyer, receiving fees advanced by the German treasury. Furthermore, the actual function of the "litigation assistance office" in German courts is to review whether applicants for legal aid meet the statutory income requirements, and for those who qualify, to provide a roster of legal aid lawyers and assist them in selecting an appropriate lawyer. The aid expenses are primarily borne by the treasury, supplemented by a system where parties bear partial or installment costs. We can learn valuable lessons from others' experiences. Fortunately, the Legislative Yuan has passed the draft Legal Aid Act on its first reading, meaning the perfection of Taiwan's legal aid system seems to be within reach. However, a reasonable number of lawyers and complementary litigation systems remain the keys to the success of the legal aid system. The legal aid system is the true litmus test for whether the Judicial Yuan's boasted spirit of "justice for the people" can be thoroughly realized.

※ Published in: Liberty Times