Association for Judicial Reform by Judges: Questions for the Nominees for the President, Vice President, and Justices of the Judicial Yuan

To prevent candidates or readers from misunderstanding the core issues behind our relatively brief questions, we have attached explanations to each question for better clarity. We hope that current and potential candidates will seriously respond to these questions, thereby proving to the citizens of our country that you are not merely running for office, but are truly prepared to shoulder the heavy responsibilities of judicial reform!

The 12 questions are as follows:

1. What is your view on the current operation of the diverse judicial appointment system, where the transfer of attorneys to judges has not proceeded as smoothly as expected? What concrete improvement measures do you propose?
2. What are your views on pre-service training and in-service professional development for judges?
3. What are your views on the system of precedents and resolutions, which currently shoulders the function of unifying legal interpretations within the judicial system? Do you think there are shortcomings? If so, what corrective measures would you take?
4. If you were to serve as the President or Vice President, could you commit to producing a cost-benefit analysis and evaluation report on various models of lay participation in trials within a specified period?
5. In current self-sponsoring urban land readjustment practices, if the buildings of landowners who are forcibly included in a readjustment district against their will impede land distribution or engineering construction, the readjustment association often files civil lawsuits in civil courts for demolition pursuant to the former part of Article 31, Paragraph 2 of the "Regulations for Encouraging Landowners to Implement Urban Land Readjustment," and almost always wins. However, such judgments appear to be in potential violation of the law and the Constitution. What are your views on this? In self-sponsoring urban land readjustment, how should a balance be struck between the protection of minority property rights and the pursuit of public interest?
6. Article 185-4 of the Criminal Code provides: "A driver of a powered transportation vehicle who causes a traffic accident resulting in death or injury and flees shall be sentenced to imprisonment for not less than one year and not more than seven years." The legislative quality of this provision has been heavily criticized by academia, and some grassroots judges are convinced of its unconstitutionality, leading them to successively suspend trials and petition the Grand Justices for a constitutional interpretation. What are your insights or understanding regarding the constitutional controversy surrounding this provision?
7. Should judges be permitted to petition for constitutional interpretation regarding precedents, resolutions, and regulatory orders? Should prosecutors be permitted to petition for constitutional interpretation regarding the cases they handle? Do you agree that petitions for constitutional interpretation filed by judges or prosecutors should be given priority review?
8. What are your thoughts on the role played by the judiciary in the implementation of transitional justice? Do you support legislation or legislative amendments for transitional justice that endow the judiciary with a more proactive role?
9. When media outlets frequently and partially report on judicial news without thorough verification, thereby repeatedly damaging the image of the judiciary, how would you respond if you served as the President or Vice President?
10. When the judiciary incurs distrust due to its failure to meet the excessively high expectations of the public, how would you respond if you served as the President or Vice President?
11. What are your effective remedies for the current predicament where heavy caseloads borne by most judges may potentially compromise the quality of case adjudication?
12. If you were to serve as the President or Vice President, could you synthesize various opinions within a limited time, propose clear standards for eliminating incompetent judges, and simultaneously propose complementary measures to prevent the abuse of supervisory power so as to safeguard judicial independence?

---

1. What is your view on the current operation of the diverse judicial appointment system, where the transfer of attorneys to judges has not proceeded as smoothly as expected? What concrete improvement measures do you propose?

   Explanation

   Since the adoption of the diverse appointment system for judges in our country, the primary sources have been: individuals who pass the judicial examination, undergo training at the Judges and Prosecutors Training Institute, and are appointed upon passing; and attorneys, prosecutors, and public defenders who apply for transfer, pass the selection process, undergo training at the Judges and Prosecutors Training Institute, and are subsequently appointed.

   However, since the implementation of the diverse appointment system, although a certain number of attorneys do transfer to become judges each year—gradually diversifying the origins of judges—the operation still seems less smooth than expected. Taking 2013 and 2015 as examples, in both years, 20 vacancies were announced for attorney-to-judge transfers, with 111 and 87 attorney applicants respectively, yet only 8 and 11 applicants passed. This serves as a clear illustration (no open recruitment for attorney transfers was held in 2014, as a side note). Such a phenomenon obviously hinders the objective of diversifying the origins of judges.

   We ask the presidential and vice-presidential candidates: why does the phenomenon of failing to fill all available quotas for attorney transfers occur? Are there flaws in the current selection procedure that make it difficult to recruit talent for the country? Or does the current system lack incentives for outstanding attorneys to transfer to judges, forcing quotas to repeatedly go unfilled under a policy of "better fewer, but better"? What concrete improvement measures can you propose?

2. What are your views on pre-service training and in-service professional development for judges?

   Explanation

   Pre-service training for judges focuses on equipping newly appointed judges with the competence required for the position; in-service professional development, through work performance evaluations and the judicial culture reflected therein, shapes judges' work values and beliefs. Both are equally important.

   However, although the Judges and Prosecutors Training Institute is currently responsible for the pre-service training of those who pass the judicial examination, its designed training curriculum has long been criticized for allocating too much time to armchair theorizing at the institute, and insufficient time for practical court internships to understand operational realities and train case-adjudication skills. Furthermore, the institute adopts a joint training system for judges and prosecutors, resulting in insufficient pre-service training time for both judicial and prosecutorial work alike, which is detrimental to the cultivation of newly appointed judges and prosecutors.

   Regarding work performance evaluations for novice judges, the document review system for candidate and probationary judges is arguably the most controversial. Because the review standards of this system are unclear, it fails to lift the greatest misgivings these judges hold regarding altering their judgment-writing style—namely, the concern that making judgments colloquial and simplified, or challenging precedents, resolutions, and stable interpretations of appellate courts, might cause them to fail the document review. This can be described as the greatest barrier shackling the simplification and popularization of judicial documents.

   Additionally, the composition of the Document Review Committee still predominantly consists of senior presiding judges and division chiefs from the Supreme Court and High Courts, with few external members. This results in a continuing lack of diverse societal perspectives in document review, which is quite detrimental to the progress of judicial practice.

   We would like to ask the presidential and vice-presidential candidates: do your views on the aforementioned phenomena and deficiencies align with ours? If not, what are the reasons? If you also agree, what concrete improvement measures do you propose?

3. What are your views on the system of precedents and resolutions, which currently shoulders the function of unifying legal interpretations within the judicial system? Do you think there are shortcomings? If so, what corrective measures would you take?

   Explanation

   Precedents and resolutions decided upon in meetings by Supreme Court judges shoulder the function of unifying disparate legal interpretations among different judges. Although they do not possess binding force akin to statutes under normative rules, lower court judgments that contravene precedents and resolutions are almost invariably revoked; thus, their substantive binding force is formidable, leading many circles to view the nature of precedents and resolutions as acts of judicial law-making by the Supreme Court.

   However, the judiciary possesses no legislative authority, and such law-making acts indeed raise issues contrary to the separation of powers. Moreover, among currently existing precedents, there is no shortage of those with weak reasoning and a contradiction of common sense. The existence of these precedents repeatedly undermines the appropriateness of judicial judgments and the rights of the people. In addition, certain types of cases ineligible for appeal to the third instance frequently exhibit long-standing inconsistencies in legal interpretation, leaving regulated parties at a loss. Yet, because third-instance appeals are barred, the current mechanism of using Supreme Court precedents and resolutions to unify legal interpretations proves entirely useless in such cases.

   Therefore, how to reform the current system of precedents and resolutions regarding its lack of constitutional legitimacy? Through what procedures should the aforementioned precedents with weak reasoning and contradictory logic be reviewed and abolished? And what system should be established so that case types ineligible for third-instance appeals can also have a mechanism to unify legal interpretations? These are issues that the incoming leadership of the Judicial Yuan must earnestly confront.

   We ask the presidential and vice-presidential candidates: what reform plans do you have for the aforementioned deficiencies in the precedent and resolution systems?

4. If you were to serve as the President or Vice President, could you commit to producing a cost-benefit analysis and evaluation report on various models of lay participation in trials within a specified period?

   Explanation

   Former high-ranking officials of the Judicial Yuan brushed aside dissenting views and forcefully promoted the lay assessor system for many years, yet struggled to gain support from grassroots judges and the outside world. Nevertheless, lay participation in trials has become a hot topic, and current legislators have also proposed a Jury Act draft aiming to introduce the jury systems of countries like the US and the UK. However, the content of this draft contains numerous self-contradictory elements, lacks visible theoretical foundations and complementary measures, and overlooks the reasons why many countries have curtailed the scope of juries or even abolished them altogether.

   In fact, the Anglo-American jury system, the Japanese Saiban-in system, and the German lay judge system each operate behind distinct theoretical frameworks and numerous complementary measures, each possessing respective pros and cons, as well as differing costs and benefits. According to two questionnaire surveys conducted in May and June of this year, the vast majority of judges agree with lay participation in trials, with about half leaning toward the jury system and about half leaning toward the Japanese Saiban-in system or the German lay judge system.

   However, the common problem is: what is the policy objective? How much will it cost? Can the objective be achieved? To date, there has surprisingly been no policy evaluation! Should hasty legislation or constitutional amendments be enacted, the consequences would be unimaginable. Can the Judicial Yuan submit a cost-benefit analysis and evaluation report on various models of lay participation in trials within a specified period, broadly incorporate suggestions from all sectors, and respectfully urge the legislature to make a prudent decision?

5. In current self-sponsoring urban land readjustment practices, if the buildings of landowners who are forcibly included in a readjustment district against their will impede land distribution or engineering construction, the readjustment association often files civil lawsuits in civil courts for demolition pursuant to the former part of Article 31, Paragraph 2 of the "Regulations for Encouraging Landowners to Implement Urban Land Readjustment," and almost always wins. However, such judgments appear to be in potential violation of the law and the Constitution. What are your views on this? In self-sponsoring urban land readjustment, how should a balance be struck between the protection of minority property rights and the pursuit of public interest?

   Explanation

   The institutional purpose of self-sponsoring urban land readjustment is to reorganize, exchange, merge, and split fragmented and irregular land within a certain area through incentive measures, and to construct public facilities so that each plot of land is of moderate size and regular shape, thereby enhancing architectural utility and incentivizing the private sector to assist the government in fulfilling urban planning functions. However, it is a frequent occurrence in practice that self-sponsoring urban land readjustment involves immense land price appreciation and engineering profits, while the relevant regulations are quite unsound (Interpretation No. 739 rendered on July 29, 2016, only then declared certain procedural provisions unconstitutional). Under such circumstances of "public law escaping into private law," the rights of minorities are inevitably and repeatedly sacrificed, principally manifested in the two aspects of land allocation and the demolition of above-ground structures.

   What concerns us more is that the former part of Article 31, Paragraph 2 of the "Regulations for Encouraging Landowners to Implement Urban Land Readjustment," promulgated by the Ministry of the Interior pursuant to the authorization of Article 58 of the Equalization of Land Rights Act, still harbors profound constitutional controversies in its interpretation and application by judicial organs. Specifically, this provision prescribes that if the board of directors of a readjustment association fails to reach a coordination or mediation with the relocated households, it shall bring the matter to a judicial organ for adjudication; it does not prescribe that they may petition the court for relocation and demolition. Yet for many years, based on the former part of Article 31, Paragraph 2 of these Regulations, readjustment associations have filed lawsuits against relocated households for the demolition of above-ground structures, and civil courts have almost invariably granted the claims—often without requiring prior compensation, permitting compulsory execution upon the finalization of the judgment.

   Yet, does interpreting "bringing the matter to a judicial organ for adjudication" as a civil claim foundation for demolishing above-ground structures conform to legal methodology? Does it violate the principle of legal clarity? Does it violate the principle of statutory reservation? If it indeed violates the aforementioned constitutional principles, how should the relevant system be amended to strike a balance between the protection of people's property rights and the public interest of urban land readjustment?

6. Article 185-4 of the Criminal Code provides: "A driver of a powered transportation vehicle who causes a traffic accident resulting in death or injury and flees shall be sentenced to imprisonment for not less than one year and not more than seven years." The legislative quality of this provision has been heavily criticized by academia, and some grassroots judges are convinced of its unconstitutionality, leading them to successively suspend trials and petition the Grand Justices for a constitutional interpretation. What are your insights or understanding regarding the constitutional controversy surrounding this provision?

   Explanation

   Does the term "causes an accident" in Article 185-4 of the Criminal Code include drivers who are without fault in a traffic accident? Should drivers who intentionally hit people be excluded? Furthermore, does the act of "fleeing" referred to in Article 185-4—aside from leaving the scene of the accident—also include remaining at the scene but failing to rescue the injured or failing to confess on the spot to the police that one is the driver who caused the accident? All these have been controversial in judicial practice. Although court interpretations have gradually converged in recent years, they diverge significantly from the ordinary person's literal understanding of "hit-and-run." Does this indicate that the provision itself violates the principle of legal clarity?

   Moreover, in some traffic accidents, one of the drivers is completely without fault, while the other sustains only very minor injuries requiring no assistance from others, nor posing any danger to passing traffic. In such cases, for that driver, even if they remain at the scene, it neither benefits public traffic safety nor rescues the injured, nor subjects them to criminal liability for negligent injury or civil compensation liability. Under such circumstances, does penalizing them for fleeing the scene—thereby restricting their freedom of movement to leave the accident site (a sacrifice that is even greater if the person happens to have other urgent business)—serve to protect what legal interest?

   In addition, a person who causes a traffic accident through negligence and thereby bears ordinary criminal liability for negligent injury is, pursuant to the former part of Article 284, Paragraph 1 of the Criminal Code, subject only to imprisonment for not more than six months, detention, or a fine of not more than 500 yuan, and the offense is prosecutable only upon complaint. However, once the accident perpetrator "flees," they are sentenced to imprisonment ranging from one to seven years. Is this putting the cart before the horse? Furthermore, if causing injury in an accident entails a duty to rescue that is unfulfilled, it is not inherently immune to punishment; rather, provisions such as the abandonment crimes under Articles 293 and 294 of the Criminal Code and the administrative penalties under Article 62 of the Road Traffic Management Penalty Act are available. Viewed in this light, does this offense conform to the principle of proportionality?

   Finally, if the offense of hit-and-run is imposed merely for the convenience of apprehending accident perpetrators, does it conform to the privilege against self-incrimination within due process of law? Moreover, our Criminal Code does not feature flight offenses for any other crimes, singling out only traffic accident perpetrators for a flight offense. Can such a provision conform to the principle of equality?

7. Should judges be permitted to petition for constitutional interpretation regarding precedents, resolutions, and regulatory orders? Should prosecutors be permitted to petition for constitutional interpretation regarding the cases they handle? Do you agree that petitions for constitutional interpretation filed by judges or prosecutors should be given priority review?

   Explanation

   Interpretation No. 371 of the Grand Justices, rendered on January 20, 1995, permitted judges to petition for constitutional interpretation regarding laws they are convinced are unconstitutional. This was of epoch-making significance to our country's constitutional review system and is deeply admirable. Nevertheless, to this day, numerous petitions filed by judges against Supreme Court precedents (referencing Article 57 of the Court Organization Act) and resolutions are still dismissed. Some commentators argue that precedents and resolutions possess only factual binding force rather than legal binding force; thus, if a judge considers relevant precedents and resolutions inappropriate during individual case adjudication, refusing to apply them is a valid approach, which also makes sense. However, lower court judgments that contravene precedents and resolutions are inevitably revoked or overturned by appellate courts, and contravening precedents may even constitute grounds for retrial after a judgment becomes final. To claim that judges enjoy judicial independence and need not be influenced by precedents and resolutions departs somewhat from reality. Furthermore, many regulatory orders exert an immense impact—such as the "Regulations for Encouraging Landowners to Implement Urban Land Readjustment" mentioned in Q5. Even if an occasional judge in an individual case deems certain provisions unconstitutional and refuses to apply them, it cannot shake the broader picture.

   In addition, many criminal cases reveal that the laws they ought to apply are unconstitutional during the prosecutorial investigation stage. If a prosecutor must indict a defendant using a law they are convinced is unconstitutional, it runs counter to human nature and is even more detrimental to the protection of human rights. If prosecutors are allowed to petition for constitutional interpretation regarding the cases they handle, should this be permitted?

   Finally, because judges or prosecutors are more likely than ordinary people to encounter and understand the constitutional evils of laws, precedents, resolutions, and regulatory orders, if they are permitted to petition for constitutional interpretation regarding precedents, resolutions, and regulatory orders—and if the Grand Justices grant them priority review, with the interpretation results possessing general binding force—it is expected that the broad infringement of human rights by unconstitutional laws, precedents, resolutions, and regulatory orders can be eliminated at an earlier date, thereby breaking the core of the conservative judicial culture. Do you agree?

8. What are your thoughts on the role played by the judiciary in the implementation of transitional justice? Do you support legislation or legislative amendments for transitional justice that endow the judiciary with a more proactive role?

   Explanation

   Transitional justice is the sincere reflection undertaken by a society undergoing democratic transition regarding the political and human rights oppression of the authoritarian era (which on many occasions was even cloaked in legal garments), followed by proactive and corresponding remedial measures post-reflection, such as compensation, vindication, and accountability. It is undeniable that, constrained by the unsoundness of relevant systems in the past, judicial organs in our country have thus far had very few opportunities to play a functional role in promoting transitional justice following democratization.

   However, with the inauguration of the new government and its more proactive implementation of transitional justice, it is foreseeable that judicial organs will have greater opportunities in the future to shoulder the responsibility of implementing transitional justice systems. Taking the draft amendment to Article 9 of the National Security Act currently under deliberation in the Legislative Yuan as an example, it prescribes that military trial cases already finalized during the period of martial law may be appealed or contested, and special tribunals may be established to try them, thereby seeking to remedy the insufficiency in the realization of the "vindication" dimension of transitional justice in our country.

   We ask the presidential and vice-presidential candidates: do you agree that judicial organs should play a more proactive role in the implementation of transitional justice? Furthermore, do you agree with legislative amendments aimed at realizing transitional justice, such as the draft amendment to Article 9 of the National Security Act?

9. When media outlets frequently and partially report on judicial news without thorough verification, thereby repeatedly damaging the image of the judiciary, how would you respond if you served as the President or Vice President?

   Explanation

   In recent years, the public's dissatisfaction with the judiciary has grown increasingly palpable, a significant cause of which is that public perception of individual judicial cases is primarily derived from media reports. However, the information presented in media reports diverges from the court trial process and results; hence, the public feels that judgment outcomes fail to meet expectations, and frequently attributes blame indiscriminately to "dinosaur judges" without verifying the judgment contents. A short while ago, an activity initiated by the Judicial Reform Foundation collected the judicial issues of greatest public concern, and the top two ranked judicial issues in the online poll were "improper reporting during investigations causing public trial by media" and "media reporting erroneous news without factual verification, harming the judiciary and the parties involved." This clearly demonstrates the immense influence of the media on the image of the judiciary.

   Moreover, biased media reporting impacts not only current trust in the judiciary, but will even shake the efficacy of promoting lay participation in trial systems in the future. The reason is that even if lay participation in trials begins to be implemented, if the media continues to produce biased reports that generate improper preconceptions among lay judges, or if the public still harbors dissatisfaction with the outcomes of lay participation due to trial by media, public trust in lay participation will remain unachievable.

   In this era of collapsing media self-discipline and flourishing online media, if you were to serve as the President or Vice President of the Judicial Yuan, how would you promote new initiatives in judicial public relations to help the judiciary shake off its "media disadvantage"? In terms of presentation formats, how would you reform the traditional release methods of press releases to make it easier for the media and the public to obtain accurate information? In terms of organization and resources, how would you build the public relations capacity required by courts at all levels to communicate more promptly and appropriately with all sectors of society?

10. When the judiciary incurs distrust due to its failure to meet the excessively high expectations of the public, how would you respond if you served as the President or Vice President?

    Explanation

    Public distrust of the judiciary is partly caused, to be sure, by historical baggage unaddressed by transitional justice, the conservative cultural traditions and vested interests of the judiciary, and a minority of law-breaking and abusive bad apples—shortcomings that certainly deserve review. But it must be candidly acknowledged that there are also instances where public expectations of the judiciary are extraordinarily high, surpassing the limits prescribed by legal provisions and judicial resources. When the judiciary fails to meet these expectations, it is perceived as a betrayal of the people, thus incurring distrust.

    For example, to this day, many people still conceive of a good judge in the image of Judge Pao: whenever someone lodges a grievance, Judge Pao immediately investigates everything clearly and promptly executes punishment, to the immense satisfaction of the public. They do not understand the rules and significance of the principle of legality, legal relationships, and the burden of proof, nor are they clear about the differences among civil, criminal, and administrative litigation, or the distinction between detention and sentencing. Criticizing court sentencing may occur without knowing the statutory penalty or ignoring fairness compared to other cases.

    Although the judiciary can do more to serve public needs, judges are merely mortal beings bound to adjudicate according to law, and judicial resources are utterly insufficient; thus, disappointments for many are inevitably hard to avoid. Such disappointment and distrust, compounded by the general public's lack of understanding and the spread of misinformation, indeed constitute major factors driving down the image of the judiciary. If you were to serve as the President or Vice President, how do you think this should be addressed?

11. What are your effective remedies for the current predicament where heavy caseloads borne by most judges may potentially compromise the quality of case adjudication?

    Explanation

    The predicament wherein judges carry heavy caseloads that may potentially affect adjudication quality has persisted for a long time. Furthermore, judicial operations are expanding daily, but given the reality that the staffing establishment of the Judicial Yuan is already approaching the upper limit set by the Act Governing Total Personnel Quotas of Central Government Agencies, expanding court personnel is virtually impossible.

    Therefore, how to triage judicial business by prioritizing major matters while letting minor ones go, and allocating human resources more efficiently, must be the inescapable mission of the incoming leaders of judicial administration. A recent report on the problem of overwork among judicial personnel completed by Judge Shih Wei-ch'en of the Taichung District Court after interviewing numerous grassroots judges points out that a majority of interviewed judges agreed that "amending the law to reduce the scope of appealable cases, and downsizing second- and third-instance personnel to release second- and third-instance manpower back to the first instance to handle cases" is a viable path to ameliorate the aforementioned predicament. This shares the same intent, demonstrating that distinguishing business by priority, letting minor matters go, and optimizing human resource allocation have already become an important consensus among grassroots judges regarding judicial reform.

    We ask the presidential and vice-presidential candidates: what are your thoughts on the predicament of heavy judge caseloads potentially affecting adjudication quality? Do you agree with the aforementioned ideas of prioritizing business by importance, letting minor matters go, and optimizing human resource allocation? If you disagree, what other sound strategies do you have? If you agree, what concrete measures will you take?

12. If you were to serve as the President or Vice President, could you synthesize various opinions within a limited time, propose clear standards for eliminating incompetent judges, and simultaneously propose complementary measures to prevent the abuse of supervisory power so as to safeguard judicial independence?

    Explanation

    It is well known that any group inevitably harbors bad apples, and if there are incompetent judges, an exit mechanism should naturally be in place.

    However, the standards of several items prescribed in Article 30 of the current Judges Act regarding grounds for individual case evaluation are extremely unclear, revealing that defining an incompetent judge is actually not easy. With blurred boundaries, ordinary judges are left at a loss as to what course of action to take. Meanwhile, the draft amendments to the Judges Act proposed by current legislators seek to delete certain requirements wherein evaluation grounds were conditioned upon "serious circumstances," without simultaneously reviewing evaluation grounds that are overly broad, which threatens to compound the problem. Furthermore, the draft amendments regarding annual performance evaluations proposed by current legislators effectively approximate the restoration of a performance rating system, but in reality strengthen the internal supervisory authority of court presidents or agency heads, conflicting with the constitutional spirit proclaimed in Article 1 of the Judges Act: "to safeguard judges' independent adjudication in accordance with the law and to protect judges' status." Admittedly, internal and external supervision of judges remains necessary; yet once the exercise of supervisory power is handled carelessly or even degenerates into settling personal scores and purging dissidents, it inevitably interferes with judicial independence, thereby creating psychological burdens for judges.

    Accordingly, we ask the presidential and vice-presidential candidates: if you were to serve as the President or Vice President, could you synthesize various opinions within a specified period, concretely propose clear standards for eliminating incompetent judges, and simultaneously propose complementary measures to prevent the abuse of supervisory power so as to safeguard judicial independence?