The Cultivation Process of Judicial Opinions and Reform Proposals: Focusing on the Review System for Judicial Opinions

Q1: Why are we writing this article?

For years, the general public has had many opinions regarding court judgments. Meanwhile, legal professionals in the private sector—whether scholars or lawyers—have also offered numerous critiques and reform proposals concerning the writing style of current court judgments and the cultivation process of their authors. Amidst these waves of reform, however, suggestions from the perspective of practicing judges are notably lacking. We believe this is definitely detrimental to ensuring that the direction of reform hits the mark. After all, judges are the actual authors of judgments and the recipients of judicial opinion-writing education; they should naturally have the clearest understanding of the realities of practical operations and related shortcomings. This article aims to fill this gap, seeking to join hands with pioneers in the private sector who care about judicial reform to jointly promote the perfection and implementation of reform.

Q2: What are judicial opinions?

The judicial opinions referred to here include judgments and rulings from civil, criminal, and administrative courts.

Q3: When does the education for cultivating judicial opinions begin? How is it cultivated?

The starting point of education for cultivating judicial opinions varies depending on the source of the judge. For those who enter the Academy for the Judiciary (formerly the Judges and Prosecutors Training Institute of the Ministry of Justice) for training after passing the special examination for judicial officials, it begins upon entering the Academy for the Judiciary for training. For those who apply and are approved to transition from lawyers or public defenders to judges, it begins upon entering the Judges Academy of the Judicial Yuan for training.

Q4: How do the Academy for the Judiciary and the Judges Academy cultivate judicial opinions?

Basically, regardless of whether it is the Academy for the Judiciary or the Judges Academy, the training period is divided into two main parts: one part consists of taking classes and exams within the academy, and the other part involves entering the courts for practical internships.

Academy Phase

First, the academy distributes handouts on judicial opinion writing to students and invites senior members of the judiciary (mostly Supreme Court judges) to teach basic matters such as court judgment formats and common errors.

Next, the practical instruction lecturers select suitable cases (basically cases where judgments have already become final), ask the court to help copy the case files, and distribute the copied files to students to practice writing judicial opinions (at the Academy for the Judiciary, such writing practice consists of six civil and six criminal cases). These are then graded and explained by academy mentors (who are also judges seconded to the academy to assist in cultivation education) before taking exams prior to heading to the court for internships.

Undeniably, during the academy phase, trainees are mostly still in an exploratory stage, and often struggle even to figure out the formatting (thanks also to the fact that certain forms of judgments, such as criminal judgments, lack much meaningful format yet have countless rules; just trying to avoid mistakes in format and rules expends a great deal of the trainees' energy). Therefore, the explanations by academy mentors also largely focus on the errors students make in format and rules during writing, with fewer in-depth discussions on the facts of the case, or analyses of evidence weighing, fact-finding, and the application of law—matters that are at the very core of future adjudicative work.

Court Internship Phase

The court divides the internship period into several stages, assigning students to intern in different court divisions—such as civil, criminal, family, juvenile, and summary divisions—according to different divisions. Each division assigns at least one judge to mentor the interns. At this point, depending on the instructional style of the judicial mentor and the proactiveness of the trainee, the judicial opinion cultivation education received varies. In the case of minimal learning, one merely looks at the case files provided by the mentor, attends court sessions with the mentor, writes the preliminary draft of the judgment for the case assigned by the mentor, and listens to the mentor's explanations on how to revise it after review. In the case of maximum learning, in addition to the aforementioned learning contents, it also includes:

1. Discussing with the mentor in each ongoing case what litigation actions should be taken on the existing basis (such as summoning witnesses, requesting data from agencies, commissioning appraisals, etc.) to effectively conduct the case and bring the truth to light, or even if the truth cannot be fully brought to light, at least allowing the judge to form a conviction on how to rule (simply put, practicing handling cases from the perspective of an "adjudicator of cases").
2. Trying to discuss with the mentor in concluded cases whether any further litigation actions could have been taken to make the case clearer; if the mentor deemed it unnecessary, why was that?
3. Prior to drafting the preliminary judgment draft or during the mentor's explanation, discussing with the mentor how evidence is weighed in the case, along with practical knowledge such as the principles of logic and empirical rules in fact-finding. This absorbs the experience of senior practitioners while simultaneously reflecting on whether such experience constitutes stereotypes or biases.

From the above explanation, it can be seen that during the court internship period, those who can fully learn will acquire and cultivate far more than just mechanical judgment formats and related stereotyped phrases. Instead, they learn knowledge and skills that cannot be learned in law school classrooms but are essential for serving as a judge, such as how seniors handle cases, how to weigh evidence, and how to find facts, all while avoiding the loss of a critical spirit. In this regard, some pioneers in the private sector believe that during our training period, we learn nothing other than mechanical judgment formats and rote stereotyped phrases. Such comments are truly overly biased.

Q5: Hearing you say this, isn't the judicial opinion cultivation education at the Academy for the Judiciary and the Judges Academy wonderful? Why are there still so many criticisms of the court's judicial opinion cultivation education? Are these criticisms all fake?

We are writing this article by no means to gloss over faults or engage in false eulogies. As stated earlier, the aforementioned ideal state is premised on the trainee's ability to fully learn. However, undeniably, some court mentors, perhaps due to heavy case loads or a lack of personal teaching enthusiasm, fail to give trainees sufficient guidance (of course, based on the authors' experience, such mentors are in the minority), resulting in not all trainees reaching the aforementioned state of full learning. Therefore, in the judicial opinion cultivation education of the Academy for the Judiciary and the Judges Academy, it is indeed necessary to strengthen areas of deficiency (how to specifically strengthen this will be addressed in a separate article).

However, we believe that the various criticisms directed by society at current court judicial opinions—such as a semi-classical Chinese style disconnected from ordinary people, excessive useless length, and a continued tendency to submit to higher-instance opinions rather than being innovative—are actually most closely related to the current review system and operation of judicial opinions for candidate and probationary judges. Without reforming the judicial opinion review system and its operation, reforming court judicial opinions will be difficult to accomplish fully.

Q6: You mentioned that court judicial opinions contain excessive useless length, which indeed seems to be most people's impression of court judgments. But what kind of useless length actually exists? It sounds vague. Can you give some specific examples?

Good question. Let us give an example below. Please first look at the following text:

OOO, in 1996, due to cases involving the Statute for the Suppression of Opium and Narcotics, was successively sentenced to imprisonment for 2 months by this Court in its 1996 Su-Tzu No. 709 Judgment, which became final; sentenced to imprisonment for 3 years and 6 months by the Taiwan High Court in its 1996 Shang-Su-Tzu No. 4347 Judgment, which became final; in 1997, due to a case involving the Suppression of Opium and Narcotics, was sentenced to imprisonment for 2 years and 8 months by this Court in its 1997 I-Tzu No. 1217 Judgment, which became final; the above 3 offenses were reduced to imprisonment for 1 month, 1 year and 9 months, and 1 year and 4 months respectively by the Taiwan High Court in its 2007 Sheng-Chien-Tzu No. 4547 Ruling, with a combined executed sentence of imprisonment for 3 years determined and finalized; in 1997, due to cases involving the Statute for the Suppression of Opium and Narcotics, was sentenced to imprisonment for 3 years and 8 months and 6 months by this Court in its 1997 Su-Tzu No. 480 Judgment, and the appeal was dismissed and finalized by the Taiwan High Court in its 1997 Shang-Su-Tzu No. 3760 Judgment; the above 2 offenses were reduced to imprisonment for 1 year and 10 months and 3 months respectively by the Taiwan High Court in its 2007 Sheng-Chien-Tzu No. 4547 Ruling, with a combined executed sentence of imprisonment for 2 years determined and finalized; the above executed sentences of imprisonment for 3 years and 2 years were entered into prison for execution on November 14, 1997, and paroled with shortened imprisonment on March 1, 2001, thereafter the parole was revoked, and he entered prison on April 23, 2008 to execute the remaining prison term of 10 months and 24 days, and the execution was completed upon the expiration of the shortened imprisonment on March 17, 2009...

The text above is an excerpt found randomly by the author after searching for a judgment. And all that lengthy text above is setting up only one thing: the defendant in this case has completed the execution of a sentence of imprisonment within the last 5 years (therefore, committing an intentional offense punishable by imprisonment for a term exceeding a fixed term this time constitutes a recidivism under Article 47 of the Criminal Code). But I believe that when many non-judicial practitioners see this huge chunk of text, their first reaction is likely: what on earth is this? When did this defendant commit what crimes previously, how did courts at all levels rule, how was the sentence reduced according to law, how was parole revoked—is this important? Why can't it just be written as: "OOO was previously sentenced to imprisonment multiple times for cases under the Statute for the Suppression of Opium and Narcotics, and completed the execution upon the expiration of shortened imprisonment on March 17, 2009"? Writing it this way already clearly states one of the constitutive elements of recidivism, which is "completion of the execution of a sentence of imprisonment"!

Sorry, because this has long been the customary writing style in judicial practice. If it is not written this way, everyone fears being considered by the higher instance as a lower-instance judge who is "slacking off." Not to mention that if the presiding judge has not yet passed the "performance evaluation for candidate and probationary judges" (explained below), failing to write this way might even be considered a flaw affecting the evaluation results. Consequently, numerous grassroots judges can only waste time on such matters—efforts that yield no public resonance and merely exhaust themselves (this defendant's criminal record is considered relatively minor; for someone truly with a heavy criminal record, the length could easily be more than double the above, so readers can imagine how much time this takes for a judge).

The above is just one example; useless writing requirements certainly do not stop here. If one has to put a label on it, perhaps this type of judicial opinion writing requirement can be described as "self-inflicted self-amusement."

Q7: What is the review system for judicial opinions of candidate and probationary judges?

This is a long story. To explain it clearly, one must first explain what candidate and probationary judges are. Simply put, compared to "tenured judges," candidate and probationary judges refer to judges whose seniority has not yet been reached, who have not yet passed work evaluations, and who are not protected by the provisions of Article 81 of the Constitution. If compared to a private company, they are like employees on probation in a private company, except that this probation period lasts for at least 6 years.

I believe many people hearing this for the first time will be quite surprised. Article 81 of the Constitution only states that judges shall hold office for life, and except in accordance with criminal or disciplinary judgments, or declarations of guardianship, they shall not be dismissed. It makes no distinction that only tenured judges enjoy protection. How can there be a group of so-called candidate and probationary judges who are unexpectedly excluded from this normative protection?

To explain this, one could trace it back to ancient times. Even the constitutionality of the Judicial Yuan's basis for excluding candidate and probationary judges from constitutional protection is questionable in itself. (As an aside, the majority view in practice holds that the Grand Justices, in Interpretation No. 13, have already indirectly acknowledged the constitutionality of this practice.) However, this article is not intended as historical research, so it is only briefly explained as above.

Since candidate and probationary judges can only gain constitutional protection upon becoming tenured judges, those candidate and probationary judges who wish to continue staying in the legal profession will naturally place the greatest emphasis on ensuring they can become tenured judges. To become a tenured judge, according to Article 9 of the Judges Act, one must:

1. Serve as a candidate judge for five years, pass the candidate performance evaluation, and become a probationary judge.
2. Serve as a probationary judge for another year, pass the probationary performance evaluation, and ultimately become a tenured judge.

Since the performance evaluations of candidate and probationary judges are so crucial to them, the item of "adjudication quality," which has the deepest impact on candidate and probationary candidate performance and is most likely to result in a failing grade, becomes the issue most constantly on the minds of candidate and probationary judges. To evaluate the adjudication quality of candidate and probationary judges, Article 13 of the "Measures for the Evaluation of Handling Business and Service Performance of Candidate and Probationary Judges"—promulgated by the Judicial Yuan pursuant to the authorization of Article 9, Paragraph 10 of the Judges Act—provides that the Judicial Yuan shall establish a Judicial Opinion Review Committee (hereinafter referred to as the JORC). Members of the JORC review the court judicial opinions drafted by candidate and probationary judges in handling cases when candidate judges reach five years of candidacy and probationary judges reach one year of probation. This is the judicial opinion review system referred to in this article. According to Article 9, Paragraph 6 of the Judges Act, candidate and probationary judges who fail the review not only cannot become tenured judges, but upon failing a second time, they even face dismissal. Therefore, it is no exaggeration to say that the standards by which the JORC reviews judicial opinions serve as the guideline for how most candidate and probationary judges draft their opinions.

Q8: What are the problems with the current review system for judicial opinions of candidate and probationary judges?

We believe the problem is that the current standards—namely the "Review Standards for Judicial Opinions of Candidate and Probationary Judges"—remain unclear. Moreover, they completely fail to eliminate the greatest misgivings of candidate and probationary judges: whether colloquializing and simplifying judicial opinions, or challenging precedents, resolutions, and stable higher-instance views, might result in failing the judicial opinion review?

This leads candidate and probationary judges to harbor reservations even if they have the heart to change past deficiencies in judicial opinion writing, such as a semi-classical Chinese style disconnected from ordinary people, excessive useless length, and a tendency to submit to precedents, resolutions, and stable higher-instance views while lacking innovation. Because:

1. Most candidate and probationary judges fear that colloquializing or simplifying the language of judicial opinions will cross the line drawn by review committee members who adhere to traditional writing styles, resulting in failure to pass the review. Therefore, they would rather adopt an attitude of maintaining the status quo.
2. Although candidate and probationary judges who bravely challenge precedents, resolutions, and stable higher-instance views are not entirely nonexistent, they remain few. After all, with the precedent right before their eyes of Judge Ch'en Chien-jung, who was evaluated as failing because his legal interpretation was deemed inappropriate due to his criticism of higher-instance views in his submitted opinions, how many people dare to step out of line?
3. Under the premises of 1 and 2 above, numerous candidate and probationary judges grind through six years to finally become tenured, but by then the habit of following old customs is long formed. How many among them who still have the heart to change will be left?

Ultimately, the most fundamental problem is that the constitutionality of the candidate and probationary judge system is problematic in the first place, because:

1. The text of Article 81 of the Constitution from beginning to end only says "judges," with no distinction of so-called "tenured judges," candidate judges, or probationary judges. Furthermore, considering that the essence of the judiciary in state functions is "adjudication," the work done by candidate and probationary judges is likewise adjudicative business, and there is simply no justification for excluding them from the protection of Article 81 of the Constitution.
2. Interpretation No. 13 merely states: "The judges referred to in Article 81 of the Constitution refer to the judges of Article 80 of the same Constitution, and do not include prosecutors. However, the status protection of tenured prosecutors, pursuant to Article 82 of the same Constitution and the provisions of Article 40, Paragraph 2 of the Court Organization Act, is identical to that of tenured judges, except for reassignments." In other words, this interpretation explains that tenured prosecutors enjoy the same status protection as tenured judges, and it does not directly affirm that the law can exclude candidate and probationary judges from the protection of Article 81 of the Constitution.

Q9: How should the review system for judicial opinions of candidate and probationary judges be reformed?

We believe the directions for improvement should include:

Short-term Goals

1. Explicitly stipulate in the review standards for judicial opinions of candidate and probationary judges that: where candidate and probationary judges have stated in their judicial opinions the reasons why they do not adopt precedents, resolutions, or higher-instance legal interpretations, the JORC shall not deem their legal interpretations incorrect or inappropriate on the grounds that their views do not conform with precedents and resolutions.
2. Explicitly stipulate in the review standards for judicial opinions of candidate and probationary judges that: when reviewing the judicial opinions of candidate and probationary judges, the JORC shall refer to the "Compendium of Exemplary Colloquialized Judgment Opinions" promulgated by the Judicial Yuan.

Long-term Goals

1. Abolish the unconstitutional candidate and probationary judge system.
2. Implement a system where newly assigned judges must adjudicate cases in collegiate panels for their first few years, to dispel concerns that the lack of trial experience among newly appointed judges might affect people's rights and interests.

Q10: Aside from the review system for judicial opinions of candidate and probationary judges, what else should be reformed?

The cultivation education of the Academy for the Judiciary and the Judges Academy must of course also be reformed, but that is a longer story and will be addressed in a separate article in the future.