Review and Prospects on the First Anniversary of the Petition Campaign to "Reform the Supreme Court"

January 11 is the annual Judicial Day. This holiday was established to commemorate how, following the Opium War, imperialist powers successively obtained consular jurisdiction in China. After a century of international humiliation, it was not until January 11 of the 32nd year of the Republic (1943) that equal new treaties were signed with the United States, Great Britain, and other nations to abolish extraterritoriality, allowing Taiwan's judiciary to finally achieve complete independence. However, are our judges truly completely independent? Judicial Day should not merely be a day of celebration, but a time for reflection. In the past, we had to reflect on why we were so weak that the judicial power rested in the hands of foreigners; today, we must reflect on why, when judicial power is clearly in our own hands, the majority of our citizens still cannot understand it and thus distrust it? Has the judiciary become independent?

At this time last year, a petition campaign launched by judges from courts at all levels—titled "Electing the President of the Supreme Court" with the objective of "Reforming the Supreme Court"—secured the participation of 563 judges across all trial tiers, opening the curtain on recent reforms regarding the Supreme Court. Why reform the Supreme Court? Because the Supreme Court does not merely "declare what the law is"; it affirms shared societal values, determines the performance evaluations of lower-court judges, and even shapes every facet of a judge's future career.

So-called judicial independence means that judges are free from any external interference and adjudicate according to their conscience and legal conviction. But do judges in our country truly possess internal independence? In the past, the Supreme Court fostered a judicial culture of legal formalism and nitpicking, coupled with a personnel transfer model based on seniority and inbreeding. The so-called independent adjudication "in accordance with the law" was based not on statutes passed by the Legislative Yuan, but on the Supreme Court's precedents and holding summaries.

What are judges thinking? Do they not yearn for a high-quality, stable judicial environment? Do they not desire the quality of judgments grounded in sound theory? How does the Supreme Court "domesticate" these judges? What career planning does it instill in them? Look at how judges themselves view their case resolution performance, the assignment of presiding judges, and promotions to higher courts! Prestige—it is merely a competition for prestige among a little over a thousand judges! Is being recognized by a mere thousand-plus people enough? No wonder the gap between the judiciary behind closed doors and the public perception is so vast!

Over the past twenty years, law has consistently been the top choice for many young students. How does an outstanding, passionate young person graduate from the top choice and step into the coveted position of judge, only to begin leading a mediocre, scrambling career as a rank-and-file judge? They spend their entire lives bogged down by paperwork, too busy to propose philosophies that lead citizens forward. Because even if proposed, it would not be accepted by the appellate court; they can only remain conservative and follow the beaten path of the Supreme Court. On this path, there is no need for new knowledge—when junior judges are starved, they look to the Supreme Court to be fed; there is no need to think, as sheltering under the Supreme Court's shade keeps them out of trouble. Consequently, judges lose their capacity to think and their ability to dialogue with society.

Must judges continue to endure such a dignity-deprived judicial environment? This petition campaign initiated by judges was intended precisely to project and build the values shared by the judicial community through participating in the selection process for the Supreme Court President—an office of symbolic significance. It aims to establish a positive feedback loop for dialogue between the Supreme Court and the judicial community, helping everyone shake off the notorious label of "dinosaur judges." It also expresses our shared concern for the future of the judiciary, calling upon citizens nationwide to exercise joint oversight, ensuring that those in power tread carefully when deciding on candidates, and enabling the emerging successor to understand and meet our expectations.

Finally, although the goal of "electing the Supreme Court President" was not achieved, it finally drew public attention to the problems plaguing the Supreme Court. Thanks to the support of broad public opinion, the media, political branches, and the Judicial Yuan, as well as the concerted efforts of the majority of judicial colleagues—including Supreme Court judges—over the past year, the Supreme Court has demonstrated many new initiatives, moving toward the construction of an enlightened, efficient, dignified judicial culture and environment that safeguards human rights. Taking this opportunity, on behalf of all members of the "Alliance of Judges Calling for Supreme Court Reform," we express our most sincere gratitude to friends from all walks of life who have actively participated in or silently supported and encouraged the reform movement over the past year. We also thank the senior veterans of the Supreme Court for their "stubborn resistance," which allowed us to continuously temper our willpower, build our courage, enrich our knowledge, and strengthen our arguments, thereby enriching our life experiences.

During this petition campaign to "Reform the Supreme Court," we put forward our "Ten Demands for Reforming the Supreme Court" on January 11, 2012. To let all sectors of society understand the judicial system's efforts during this period, we chose to release the achievements of this campaign on its first anniversary. These achievements include:

1. The abolition of the confidential case-assignment system;
2. The mandatory holding of oral arguments in all second-instance death penalty cases; and
3. The draft amendments to the Court Organization Act—abolishing the selection and compilation of precedents and establishing Grand Chambers—having been submitted to the Legislative Yuan for deliberation, among other relatively concrete results.

As for areas that still require continued effort, they include: (1) reducing the number of judges; (2) realizing diverse recruitment and changing the method of selecting judges; (3) abolishing the quota-based case assignment system; and (4) completing the third reading of the Court Organization Act so that the new mechanism for unifying legal interpretations can officially commence (as detailed below). We kindly ask you to continue caring about and understanding the judiciary alongside us, and to join hands in reforming this closed judicial system topped by the Supreme Court, cultivating a pure judicial land for ourselves and future generations!

Results of Promoting the "Ten Demands for Reforming the Supreme Court"

No.	Basic Demands	Current Problems	Reasons for Reform & Countermeasures	Implementation Results
1	The number of Supreme Court judges should be reduced to facilitate the function of legal review in unifying legal interpretations.	Under the current bucket-shaped litigation system, the Supreme Court has too many personnel. With each division singing a different tune, lower-court judges are left at a loss, and the public suffers deeply.	As the ultimate arbiter of societal disputes, the judicial power should provide stable and predictable standards to ensure legal stability and fairness. An excessive number of judges in the court of last resort only leads to "discordant tunes" and increases the cost of unifying legal interpretations. Therefore, in coordination with the reform toward a pyramid-shaped litigation system and under the strict adherence to the principle of strict legal review, the number of judges in the court of last resort should be progressively reduced, and joint Grand Chambers should be established to fulfill the function of unifying legal interpretations.	The Supreme Court has progressively implemented "full staffing" in accordance with the law (allocating 5 judges per division); for instance, the civil divisions have been reduced from 7 divisions in 2011 to 6 divisions in 2012. The draft amendments to the Court Organization Act, passed by the Judicial Yuan Council on December 22, 2012, and submitted to the Legislative Yuan for deliberation, explicitly stipulate that the Supreme Court shall establish a Civil Grand Chamber and a Criminal Grand Chamber responsible for unifying legal interpretations. The Supreme Court's incoming caseload has not yet significantly decreased, and efforts to reduce the number of Supreme Court judges still require further work.
2	The Supreme Court must strictly adhere to the separation of powers and amend the outdated precedent system and culture.	During the process of legal reception in the late Qing and early Republican periods, influenced by the Chinese legal cultural sphere, coupled with legislative gaps and practical needs, the Dali Yuan (Court of Cassation) played the role of "judiciary concurrently acting as legislator" in order to uniformly interpret laws and legal views. This gave rise to the current precedent system that integrates Chinese-style "statutory law" and "case law," which possessed historical necessity and a basis of legitimacy. Later, although the national legal order had been unified, democratic politics had matured, and the legal system had become complete, the court of last resort failed to perceive this. When the received Japanese legal system shifted in 1921 to a precedent system combining case facts and legal views, our court failed to sense the factors of social and legal change and make corresponding adjustments. Instead, deviating from the early Republican practice of unifying legal interpretations through plenary judgments, it created a peerless system and culture of precedent selection, compilation, and revision meetings, thus forging an unconstitutional precedent system and culture. This precedent system, characterized by the role of a "judiciary concurrently acting as a legislator," is not only unique in the world and contrary to the constitutional principle of the separation of powers, but also impedes individual case justice and social progress.	The legitimacy foundation of the precedent system lies in the principle that similar cases should be treated alike, which is the primary reason why countries such as the US, UK, Germany, and Japan maintain similar concepts or legal institutions like "previous judicial views" or "judicial precedents." The Supreme Court should review and abolish many outdated precedent holdings and adopt the internationally recognized "judicial precedent" system—which combines case facts with legal views—as the benchmark for reviewing lower-court judgments. Only when it is determined that a lower-court judgment indeed violates the concept of "treating similar cases alike" should the Supreme Court, based on considerations of legal stability, appellate restraint, and litigation economy, set it aside and render its own judgment or remand the case. As for lower-court judges who have raised legal convictions arguing against the application of a certain precedent, or even dissenting from it, the Supreme Court should examine whether the legal view held by the original precedent needs modification; under no circumstances should it arbitrarily take disadvantageous actions against lower-court judges in any form merely to preserve the authority of the court of last resort.	The draft amendments to the Court Organization Act, passed by the Judicial Yuan Council on December 22, 2012, and submitted to the Legislative Yuan for deliberation, explicitly abolish the "precedent selection and compilation" system and stipulate that previously compiled precedents lacking case facts for verification (primarily those rendered in the Mainland region prior to 1940) shall cease to apply. During his inauguration speech on February 16, 2012, Supreme Court President Yang Ting-chang announced that he would actively review outdated precedents. For instance, the heavily criticized precedent holding that "the crime of drug trafficking does not take subsequent resale after acquisition as a constituent element" was declared no longer applicable. The "Judicial Yuan's Adjudication Document Review Committee," where Supreme Court judges hold the majority of committee seats, passed the "Evaluation Form for Adjudication Document Review of Probationary and Provisional Judges" at its 6th meeting of 2012 held on October 29, 2012, incorporating "whether judges apply judicial precedents in compliance with the principle of applying precedents based on 'identical case facts'" as a review item.
3	The Supreme Court must implement procedural justice and make case assignment procedures public and transparent.	The Supreme Court is the only court across all appellate tiers in our country to adopt a confidential case-assignment system. However, the non-public and non-transparent nature of the case-assignment procedure easily arouses suspicions of interference with adjudication.	The people's right to be tried by a lawfully designated judge has already been affirmed in Judicial Yuan Interpretation No. 665. The confidential case-assignment system is a manifestation of distrust toward diligent judges, provides a protective umbrella for incompetent judges, and serves as a symbol of an uncivilized nation. The Supreme Court's case-assignment procedures should be public and transparent to facilitate oversight and checks and balances by public opinion, thereby winning public trust in the judiciary.	President Ma publicly expressed support for abolishing the "confidential case-assignment" system when receiving representatives of the Judges' Alliance on February 9, 2012. The Judicial Yuan amended the "Supreme Court Operational Regulations," and the "confidential case-assignment" system, which had been practiced for 62 years, officially came to an end on April 16, 2012.
4	The Supreme Court must steadfastly uphold the principles of legality (nullum crimen, nulla poena sine lege) and presumption of innocence, and must not alter them due to temporary public pressure.	The controversies surrounding sexual assault judgments that triggered the White Rose Movement stemmed fundamentally from the Supreme Court's inability to perceive that legal amendments actually reflect shifts in criminal legislative policy; instead, it continued to bind lower-court judges with unconstitutional precedents that no longer matched legislative intent. Consequently, when lower-court judges rendered judgments in accordance with the Supreme Court's intent, they were derided as "dinosaur judgments." After public criticism surged, however, the Supreme Court cowered under public pressure and reversed its previously consistent view, adopting whether the victim had reached the age of seven as the criterion for determining whether the aggravated non-consensual sexual assault offense under Paragraph 1, Article 222 of the Criminal Code was constituted. Such an approach clearly enacted resolutions through meetings on matters belonging to the prerogative of the Legislative Yuan, in violation of the principle of legality.	Due to the severity and subsidiarity of criminal punishment, the principles of legality and presumption of innocence are universal values. While the controversies sparked by sexual assault judgments—exposing the gap between legal professionalism and the public's legal sentiment—certainly involve issues of flawed legislation, the more fundamental cause lies in our judges clinging to statutory formalism and conceptual jurisprudence, ignoring the living ethical, customary, political, economic, and other socio-cultural contexts behind laws. In particular, the Supreme Court failed to fulfill its function of legal continuation by reflecting changes in criminal legislative policy and rendering judgments aligned with social values. Therefore, the fundamental solution lies in discarding the precedent culture that severs case facts from legal views, and encouraging lower-court judges to combine theory with practice, boldly rendering judgments that align with legal principles and public legal sentiment rather than bowing to temporary public pressure.	Reform of the precedent system, as explained in item 2 above. The "Judicial Yuan's Adjudication Document Review Committee," where Supreme Court judges hold the majority of committee seats, passed the "Evaluation Form for Adjudication Document Review of Probationary and Provisional Judges" at its 6th meeting of 2012 held on October 29, 2012, incorporating "combining legal theory and practice to propose innovative thinking, problem-solving methods, or legal discovery" as a bonus item.
5	Supreme Court judgments should, in principle, hold oral arguments and adopt mandatory defense.	Article 474 of the Code of Civil Procedure stipulates that Supreme Court judgments should hold oral arguments in principle, with exceptions only applied otherwise, and the Code of Criminal Procedure also contains provisions for convening oral arguments. Yet currently, the Supreme Court does the exact opposite, rarely convening oral arguments, which is clearly non-compliant with the law.	The third instance is a court of law; conducting debates on legal issues can better fulfill the function of a legal review court and enhance parties' trust in adjudications. Therefore, the Supreme Court should hold oral arguments in principle for civil litigation. Furthermore, a criminal defendant's right to the assistance of counsel is a universal value, and the Supreme Court should naturally adopt a mandatory defense system. As for death penalty pronouncements, which are ultimate punishments depriving individuals of their right to life, oral arguments should be held all the more to demonstrate solemnity and manifest the judiciary's respect for life.	At the joint meeting of the civil and criminal division presiding judges and the judicial affairs allocation committee held on October 30, 2012, the Supreme Court decided that starting in December 2012, aside from mandatorily holding oral arguments for second-instance death penalty cases, oral arguments would also be held for civil and criminal cases of significant legal significance or value. The Supreme Court Criminal Division held oral arguments or preparatory proceedings for 3 cases in 2012.
6	The Supreme Court must firmly guard the boundary between questions of law and questions of fact, demonstrating the stature and vision of a court of law.	The core function of a court of law is to conclusively and uniformly interpret the meaning of laws. However, instances where the Supreme Court sets aside judgments and remands cases while demanding the investigation of useless or harmlessly flawed facts are frequently heard; cases where it fails to express legal views but instead demands that lower courts research legal questions are also not uncommon. Such confusion between the boundaries of questions of law and questions of fact not only leaves cases lingering unresolved for a long time—keeping the factual dispute in a state of prolonged uncertainty—but also increases its own and the overall judiciary's caseload, consequently preventing the Supreme Court's core functions from being fully realized.	The views of the Supreme Court exert a strong guiding effect on lower-court judges. Demanding the investigation of useless or harmlessly flawed facts will inevitably waste overall adjudicatory resources; failing to clearly interpret the law before remanding a case for retrial is even more unbecoming of the Supreme Court's stature and vision. Therefore, the Supreme Court should clarify the division of labor between legal and factual reviews to ensure its primary function lies in explaining the importance of the law. If, as a result of interpreting the law in an individual case, there is indeed necessity and practical benefit in remanding the case for retrial, it should explicitly state its legal views and point out all facts that need investigation all at once, avoiding the increase in the Supreme Court's own caseload and the burden on the overall judiciary caused by repeatedly setting aside judgments and remanding them for retrial.	The set-aside and remand rate for Supreme Court criminal trials has continued to decline, dropping from 18.67% in 2011 to 13.60% in 2012 (as of November). Preliminary observation shows that instances of demanding the investigation of useless or harmlessly flawed facts have also decreased, though detailed circumstances still require further statistical analysis. The set-aside and remand rate for Supreme Court civil trials has continued to decline, dropping from 22.15% in 2011 to 19.27% in 2012 (as of November). Somewhat surprisingly, civil litigation—which is designed closer to a strict legal review model—actually exhibits a higher remand rate than criminal trials, leaving obvious room for improvement.
7	The Supreme Court must safeguard people's litigation rights and abolish the bad habit of quota-based case assignments.	Current laws in our country contain no provisions for quota-based case assignments, and courts at all other appellate tiers do not have systems for quota-based case assignments either. Currently, the Supreme Court adopts quota-based case assignments through internal regulations, creating the predicament of prolonged litigation for the public.	"Justice delayed is justice denied" and "the people's right to prompt trial" are not only universal values but also basic rights protected by the Constitution. The quota-based case assignment system currently practiced by the Supreme Court should be phased out according to a set schedule.	The Supreme Court's incoming caseload has not yet significantly decreased, and efforts to abolish the quota-based case assignment system still require further work.
8	The Supreme Court must strictly abide by the Constitution and possess constitutional review awareness when interpreting laws.	The power to invalidate unconstitutional laws in our country belongs exclusively to the Grand Justices of the Judicial Yuan, and judges at all appellate tiers should petition the Grand Justices for interpretation whenever they encounter constitutional controversies concerning laws. Currently, lower-court judges are largely able to strictly abide by the Constitution, possessing constitutional awareness when interpreting laws and petitioning for constitutional interpretation whenever constitutional controversies arise. In contrast, confined by "departmentalism" and "inter-institutional confrontation" mindsets, the Supreme Court rarely displays constitutional awareness when interpreting laws, and even more rarely petitions for constitutional interpretation.	Based on the supremacy of the Constitution and the consistency of the legal order, judges of courts at all levels are inherently required to perform "constitution-compliant legal interpretation" when interpreting and applying laws. Judges not only have the power to review whether the laws they apply are constitutional, but it is also their duty; thus, judges of all levels are also "guardians of the Constitution." As a court of law and the ultimate adjudicatory organ for civil and criminal litigation responsible for reviewing the application of law, the Supreme Court's primary function lies in unifying the interpretation and application of law while reconciling the needs of legal stability with social transformation. Within a certain scope, it possesses the function of legal continuation through micro-adjustments. Naturally, it must possess constitutional and constitutional review awareness to thoroughly implement the constitutional intent of protecting human rights and fulfill its duties as a court of last resort.	In 2012, no instances of Supreme Court panels petitioning the Grand Justices for interpretation regarding cases involving constitutional legal controversies were observed. Whether the Supreme Court strictly abided by the Constitution during adjudication and possessed constitutional awareness when interpreting laws also awaits further research and analysis.
9	The Supreme Court should appoint people on their merits, implementing the concepts of diverse recruitment and treating judges as equals regardless of seniority.	Currently, the primary source of judges in our country is trained through the Judges and Prosecutors Training Institute of the Ministry of Justice. Because of this centralized training, personnel transfers are plagued by cultures of seniority and cohort ties. Under the current practical personnel operational model, transfers to the Supreme Court must be approved by the court's presiding judges' meeting, resulting in problems of inbreeding and retaliatory actions.	The Supreme Court bears the function of engaging in legal continuation in response to social changes. To comply with the concept of value pluralism, in accordance with Article 5 of the Judges Act, a portion of Supreme Court judges should be selected from qualified lawyers and scholars. To align with the concept that all judges are equals, the selection of Supreme Court judges should not be restricted to those with High Court judge experience, thereby encouraging judges to remain long-term in their positions and find joy in their work. Meanwhile, to fulfill the function of collegiate adjudication, appointments should not be solely decided by the court's presiding judges' meeting; instead, the President of the Judicial Yuan—who is subject to accountability—should submit a multiple of candidates for deliberation by the Judicial Yuan Personnel Review Committee.	In the "Regulations Governing the Transfer and Reappointment of Judges" promulgated by the Judicial Yuan on September 21, 2012, besides requirements on seniority and cohorts, it is explicitly stipulated that a judge's "hours spent on continuing education over the past three years, or hours invited to serve as a professional seminar lecturer, keynote speaker, or discussant" and "judgments of reference value written or academic papers published over the past three years" shall be included as factors considered for transfer. Supreme Court personnel appointments have yet to fully implement the concepts of diverse recruitment and treating judges as equals.
10	Candidates for the President of the Supreme Court should embody reformist ideals and bear responsibility for judicial administrative matters.	In the past under the authoritarian regime and the martial law period of single-party dominance, the judiciary served politics, and political branches could easily interfere with the judiciary. Overcorrecting after the lifting of martial law, the cry of "judicial independence" echoed to the skies, and judicial administrative issues—which ought to entail political responsibility for poor policy and judicial personnel decisions—all retreated behind the grand banner of judicial independence. The protective attitude of the Supreme Court in the case involving Judge Hsiang Yang-kuei's lobbying is the best proof of this.	"Judicial independence" and "democratic accountability" are two ends of the judicial balance; leaning excessively toward either end is detrimental to a democratic and rule-of-law society. The method of accountability for first- and second-instance judges' adjudications is controlled through the appellate relief system; however, there is no accountability mechanism for the adjudication quality of Supreme Court judges, making the method of their selection particularly important. Because appointing Supreme Court judges who are unsuited for legal review work, unwilling to unify legal interpretations, and capable only of repeatedly setting aside and remanding cases will cause disaster for the public and the judiciary. To resolve such problems, aside from the President of the Judicial Yuan nominating and taking responsibility for Supreme Court judge appointments, greater importance must be attached to the selection of the Supreme Court President, requiring them to shoulder responsibility for the aforementioned judicial administrative reform measures to ensure the implementation of various judicial reform measures through democratic oversight and checks and balances.	President Ma publicly stated when receiving representatives of the Judges' Alliance on February 9, 2012, that the President of the Supreme Court should possess reformist ideals, and subsequently appointed Mr. Yang Ting-chang as President to drive reforms. When appointing new presiding judges at the Supreme Court in 2012, multiple candidates were submitted in accordance with the law for the reference of the President of the Judicial Yuan, who then nominated them for deliberation by the Judicial Yuan Personnel Review Committee. The method of selecting Supreme Court judges remains unchanged and still requires efforts (such as shifting to selection by a Judicial Selection Committee).