On the Origin of Deliberating the Codification of the Principle of Indictment Upon a Single Document and Its Complementary Systems, Together with the Necessity and Explanatory Notes of Proposed Provisions for Incorporating Fundamental Criminal Human Rights into the Constitution

Our country's current Code of Criminal Procedure was promulgated on January 1, 1935, and entered into effect on July 1 of the same year. Although it has been amended or supplemented multiple times over the years, the litigation system formulated 64 years ago has become obsolete due to rapid changes in the social environment and the continuous evolution of criminal procedure theory, making it clearly insufficient to meet the needs of current circumstances. The quality and quantity of cases borne by judges at all levels are heavy and immense, far exceeding the reasonable limits of personal physical endurance. At the end of 1997, I was assigned to serve at the Supreme Court. Witnessing numerous judges laboring tirelessly day and night, struggling amidst mountains of case files, yet constrained by our country's cylinder-like appeal system, the pending cases continued to increase, and cases remanded for retrial grew day by day, which profoundly impacts the rights and interests of litigation parties, the quality of judgments, and the credibility of the courts.

Calls for judicial reform have resounded loudly across the ruling and opposition parties for many years. However, so-called judicial reform is nothing more than demanding integrity among judges, excellent judgment quality, and the enhancement of court credibility. The calls and steps for this reform have been underway for years, and successive judicial heads have spared no effort to work toward it. Yet, a serious review of the results shows that the effectiveness has been limited and difficult to satisfy all sectors, which is an indisputable fact.

Subsequently, after long contemplation and referencing the adversary litigation systems of the United States and Japan centered on the principle of indictment upon a single document and a fair court, I became deeply convinced that current deep-seated maladies cannot be effectively remedied unless fundamental reforms are made to the litigation system. Taking a comparison of criminal cases between our country and Japan in the recent two years: in 1997, our country concluded approximately 233,000 investigative cases throughout the year, with over 133,000 cases prosecuted, among which nearly 110,000 cases were prosecuted via ordinary procedures, accounting for about 80 percent of all prosecuted cases. In contrast, according to statistical data from neighboring Japan two years prior, the prosecution prosecuted approximately 1.15 million cases annually, among which 86,000 cases were prosecuted before district courts via ordinary procedures, accounting for about 7.5 percent of all their prosecuted cases. Comparing the two, Japan—with a population approximately six times that of our country—actually had fewer cases prosecuted via ordinary procedures than our country. Furthermore, because that country implements an adversarial system centered on the principle of indictment upon a single document, taking 1997 as an example, among the 86,000-plus criminal cases prosecuted via ordinary procedures in Japan, only about 5,500 cases were appealed to the second instance after a first-instance judgment, which is less than 7 percent. In contrast, our country, which adopts the inquisitorial system, accepted a total of approximately 110,000 criminal cases in the first instance that year, and those appealed to the second instance after judgment were as high as over 34,000, accounting for about 30 percent. A closer examination reveals that almost all unappealed cases were fines, conversion of fines into labor, or suspended sentences. Moreover, because the second instance adopts a system of review, after deducting cases under each subparagraph of Article 376 of the Code of Criminal Procedure that cannot be appealed to the third instance from the judgments (approximately 37,000 cases), out of more than 13,600 cases, about 7,700 cases were appealed to the third instance. The acquiescence rate of second-instance judgments was a very low 43 percent (in Japan in 1997, only 1,390 cases were appealed to the Supreme Court after appeal-instance judgments). By comparison, it is distinctly apparent that different litigation systems naturally highlighted different results; hence, the case-handling pressure borne by the Japanese criminal trial system is far lower than that of our country, and the excellence of its judgment quality and the public's high sense of trust in the courts go without saying (the total number of judges in Japan is about 3,000, among whom about one-third handle criminal cases; our country's number of judges is about 1,200-plus, among whom about three-fifths handle criminal cases). Based on this analysis, it can be found that the criminal procedure system adopted by that country can resolve our country's current dilemma. Consequently, starting from March 1, 1998, under the name of the 'Supreme Court Academic Research Association,' we united academia, attorneys, and members of the judiciary and prosecution to engage in research and training on the necessity and feasibility of the 'principle of indictment upon a single document' and related complementary measures, as well as the concrete work of codifying them into laws. The research association met once a week, going through more than 40 meetings in a year. Participants enthusiastically offered advice and contributed all their efforts to give equal weight to theory and practice, integrating the legal systems of the US, Japan, and our country's conditions into one, absorbing their strengths for our use, in hopes of achieving ultimate perfection. We have now compiled the research report volume 1 entitled 'Codification Research Report on the Principle of Indictment Upon a Single Document and Complementary Systems in Criminal Procedure' along with proposed amendments to the Code of Criminal Procedure provisions, and submit them for your guidance and correction.

On the surface, the principle of indictment upon a single document may seem to merely mean that 'case files and evidence are not transferred to the court' during prosecution via ordinary procedures. In reality, however, because judges do not hold case files and evidence when reviewing cases, they can maintain a state of pristine purity and mind like jade and ice, presiding over the court transcendently from a neutral standpoint. This not only eliminates the prejudice of being found guilty before trial, but also relies solely on the evidence investigation methods dominated by prosecutors, defendants, or their defense counsels during public trials—such as presenting evidence, direct examination, cross-examination, redirect examination of witnesses, and thorough debate—while excluding illegal evidence lacking probative force, thereby forming a mental conviction compliant with logic and empirical rules to render objective, fair, and impartial judgments. In this way, not only can the presumption of innocence be realized, but because the judge holds no case files and evidence, there is no way to investigate evidence on behalf of the prosecutor ex officio. Therefore, unless the prosecutor participates in the trial proceedings and argument from beginning to end, actively presents evidence and debate, the court may at any time render a not-guilty verdict for the defendant during intermediate trial proceedings. The heavy, laborious, and publicly fierce nature of argumentation, evidence presentation, and debate procedures during the trial will inevitably attract public attention, making the prosecutor's decision to indict or not much more cautious, which in turn pursues the refinement of investigative activities. Because both sides come to the trial proceedings fully prepared with clear controversies, and the parties themselves can determine the scope, method, and sequence of evidence investigation to launch active attacks and defenses—with prosecutors fulfilling their duties and defendants mounting adequate defense—trial outcomes will rarely suffer from circumstances such as failing to investigate evidence that should be investigated on the trial date, adjudicating matters not requested, or failing to adjudicate requested matters. Ultimately, the vicious cycle of protracted trials, accumulated cases, and repeated remandals for retrial can be avoided. Furthermore, by adopting the cause-of-action system, where public prosecution instituted by prosecutors must specify the cause of action, court trials are limited to the cause of action, and defendants and defense counsels can mount defenses directed at the cause of action and attacking evidence designated by the prosecutor, the concept of the criminal defendant's right to defense in litigation can truly be established. The court's adjudication will not be overly document-based, and free evaluation of evidence will not invite accusations of judicial injustice due to arbitrariness.

In short, the adversarial system centered on the principle of indictment upon a single document aims to uphold due process of law—that is, under the maintenance of procedural justice, strengthening the investigation of evidence in trials of fact in order to discover the truth and achieve the purpose of realizing substantive justice. With these foundations in the first instance, it can win public credibility and become a true court of fact. It naturally follows that the second instance should abandon the current system of review and change to a subsequent review of facts, and the third instance should adopt a strict legal review, no longer examining facts. This should no longer attract criticism for harming the people's right to judicial benefits. Otherwise, seeking substantive justice without procedural justice is tantamount to scaling a tree to catch fish. If the foundation is neither sound nor complete, simply hoping to 'chop off' the rights to appeal to the second and third instances—how can it gain the recognition of the nationals? The disagreement of the Legislative Yuan, scholars, and the legal profession with this saw-like deletion of the right of appeal cannot be said to be without cause.

However, judging from the aforementioned two statistical statistics, implementing this system requires thoroughly reducing cases prosecuted by prosecutors through ordinary procedures; that is, there must be substantive and comprehensive complementary procedural measures before it can succeed. Among the most important is the reconstruction of trial and investigation procedures centered on the prosecutor, the key contents of which include: 1. Procedures for not prosecuting micro-offenses (minor offenses): the police's right not to prosecute minor offenses and the prosecutor's discretionary power of suspended prosecution. 2. Procedures for the swift judgment of clear cases (defendant guilty-plea cases): summary punishment order procedure and modified summary public trial procedure. 3. Procedures for cautious adjudication of doubtful cases (more complex cases where defendants do not plead guilty). Regarding procedures for non-prosecution of micro-offenses, suspended prosecution, and swift judgment of clear cases, it is necessary to rely on the prosecutors' full exercise of authority and perfect coordination to exert efficacy, so as to reduce the quantity of our country's cases prosecuted via ordinary procedures to at least within 20 percent of all prosecuted cases. Taking 1997 as an example, annual prosecuted cases were approximately 110,000, and 20 percent would be 22,000 cases, which would avoid adding further burdens to the current first instance. Only then can our country's pyramid-shaped appeal system be recognized, along with which the quality of judgments and public trust in the courts will inevitably be enhanced.

A Japanese proverb says: 'Criminal justice belongs to the prosecutor,' meaning that prosecutors possess immense discretionary power and space over the vast majority of cases. If we wish to implement judicial reform, we naturally cannot ignore the existence of prosecutors, who are equally subjects of the judiciary. Therefore, aside from exercising their powers and functions on an equal footing with defendants from the standpoint of public prosecutors in trial cases prosecuted via ordinary procedures, their original status, position, qualifications, and remuneration as judicial officers must be firmly safeguarded.

To go a further step, if issues affecting prosecutors' exercise of duties, such as increasing staffing numbers (meaning the reasonable ratio of prosecutors to judges should be 2 prosecutors to 3 judges [including civil and criminal divisions]) and new professional training for prosecutors, are not fully and complementarily completed, the adversarial system centered on reform around the principle of indictment upon a single document will inevitably fall into difficulties.

Furthermore, for defendants facing powerful prosecutors, they should also be granted the right to retain defense counsel at any time, and those lacking financial resources should be assigned defense counsel by the state, so as to achieve the ideal of a fair court safeguarding human rights.

Additionally, during the research and training process, we also discovered that to maintain justice in litigation procedures, there must first be comprehensive measures to safeguard human rights before this objective can be fully achieved. For the Code of Criminal Procedure is a procedural law prescribing the state's exercise of penal power, involving the deprivation of people's lives, liberty, and property, which requires a constitutional basis. Important basic human rights such as personal liberty, freedom of residence, and the protection of property rights can only obtain adequate protection when explicitly regulated in the Constitution and concretely practiced through the Code of Criminal Procedure. The relationship between the two is extremely close; the Code of Criminal Procedure is the 'applied Constitution.' However, for a long time, due to the overly abstract and rudimentary provisions concerning basic criminal human rights in our Constitution, it not only limited the constitutional interpretation function of the Grand Justices' meeting and the development of the criminal procedure system, but also created numerous human rights-infringing abuses in actual operation. Based on the requirements of the Universal Declaration of Human Rights, referencing the provisions of countries like the US and Japan on incorporating basic criminal human rights into the Constitution, and considering the direction of our country's democratic constitutional reform while reflecting on the shortcomings in the operation of criminal procedure, we firmly believe that explicitly incorporating basic criminal human rights into our constitutional provisions in advance is truly of significant importance and value. The Academic Research Association of our court considers that under the circumstances of insufficient human rights protection provisions in our country, in order to accelerate the reform of the criminal procedure system and prevent human rights-infringing abuses, we should reference the 'International Covenant on Civil and Political Rights' and the constitutional provisions of countries such as the US and Japan, and promptly incorporate basic human rights—such as due process clause protection, the presumption of innocence principle, warrant principle protection, the right to remain silent, the right to retain defense counsel, the right to cross-examine and summon witnesses, the confession rule and corroborating evidence rule, prohibition of double jeopardy, the principle of legality (nullum crimen, nulla poena sine lege), and protection against cruel and unusual punishment—explicitly into constitutional amendments. We have drafted the document entitled 'Necessity and Explanatory Notes of Proposed Provisions for Incorporating Fundamental Criminal Human Rights into the Constitution Recommended by the Supreme Court Academic Research Association,' soliciting opinions from various legal people's organizations, and after pooling consensus, submitting it to the Judicial Yuan to forward to the National Assembly as a reference for constitutional revision.

Judicial reform involves myriad complex strands and can never be achieved overnight. However, choosing the correct direction and striving for it with utmost effort is our unshirkable responsibility. Nevertheless, as this involves many parties and has a profound impact, it is earnestly hoped that all sectors can cast aside biases, eliminate departmentalism, contribute their own efforts, and accomplish the long-awaited grand enterprise of judicial reform for our citizens as soon as possible.