Did the Ministry of National Defense Accidentally Win a Rigged Game?

Winning a lawsuit usually brings joy. In the civil liability proceedings of the Chiang Kuo-ch'ing case, where the Ministry of National Defense sued Ch'en Chao-min and others, the first-instance judgment on May 29 resulted in an almost complete victory for the Ministry. Yet, the Chief Judge of the Northern Military Court showed no obvious joy when interviewed, contrasting sharply with the excitement of the JRF, which felt as if "others are eating noodles while we are shouting in anxiety."

Throwing Money into the Water

Civil litigation operates on the principle of party presentation, especially in property rights disputes. The underlying rationale is that private individuals are inherently free to dispose of their property; even if they "throw their money into the water," the state has no business interfering. Litigating haphazardly is like throwing money into the water—since it is your money, no one else cares if you lose.

After wrongfully executing Chiang Kuo-ch'ing and paying over NT$100 million in compensation, the Ministry of National Defense turned to seek recourse from the illegal and negligent public officials. The case was formally filed on April 12, 2012, and took a full two years until the judgment in May 2014. In fact, during the first half of this period, the Ministry was less than proactive, requiring the judge to request repeatedly before it gradually clarified the "primary and alternative claims for relief" and "the legal relationship between them." It took a whole year to barely confirm the disputed and undisputed points between both parties.

Following the judgment, media outlets already pointed out that the Ministry of National Defense's "litigation strategy was inappropriate." This is because the "primary claim" sought "apportioned compensation," dividing the total amount of over NT$88.44 million into 7 equal shares, with Ch'en Chao-min and others each ordered to compensate over NT$14.74 million. The "alternative claim," meanwhile, requested "joint and several liability," arguing that Ch'en Chao-min and others should be jointly and severally liable for over NT$88.44 million. During the court hearings, the judge had already clarified more than once that this presented a logical problem.

Joint and several liability means that "everyone must pay the NT$88.44 million," regardless of who pays, as long as any single person is able to cover the NT$88.44 million first. Compared to an individual paying a "maximum" of only NT$14.74 million, the former is obviously severe while the latter is mild. The rational approach when filing a claim is to place the "severe" claim first and the "mild" claim second to maintain logic. The Ministry's approach was akin to putting National Taiwan University as the very last choice on a college entrance application—even with the highest score in the country, one would still fail to enter NTU.

Based on the principle of party presentation, judges can hardly directly interfere with how the Ministry drafts its claims. The problem, however, is that the funds spent by the Ministry of National Defense are taxpayers' money. This case is undeniably a public interest case, and failure to seek effective recourse hurts the public. Once the case ascends to the High Court, the court ought to consider who can truly safeguard the people's wallets. If the Ministry of National Defense harbors no willingness to change, bringing in the National Audit Office or the Control Yuan to participate in the litigation might just be a brilliant solution.

Highlights in the Judgment

Although courts do not act without a formal complaint, the first-instance judgment nonetheless heavily slapped the Ministry of National Defense in the face. The Ministry argued that everyone's responsibility should be "equally apportioned," but the judge ruled that Ch'en Chao-min, holding a high and powerful position, must bear at least 1/3 of the responsibility. The Ministry claimed Teng Chen-huan had already settled and need not even be prosecuted, but the judge ruled that he too must bear 1/8 of the responsibility. These resolute and unambiguous decisions will undoubtedly give the Ministry a severe headache regarding whether to "expand" its claims upon appeal, or even to prosecute Teng Chen-huan anew.

Compared to the conservatism of the Taipei District Prosecutors Office, the judge held that the military officers including Ch'en Chao-min obtained confessions through illegal means, which constituted "intentional or grossly negligent illegal conduct." Furthermore, taking into consideration "the subordinate environment and power-responsibility relationship of the military judicial organ," and referencing "military judges' excessive reliance on anti-intelligence personnel's illegally obtained confessions against Chiang Kuo-ch'ing," there was naturally a "proximate causal relationship" between Chiang Kuo-ch'ing's death and the illegal conduct of these officers. In other words, one cannot use "adjudication" as a "breakpoint" to sever the actions of Ch'en Chao-min and others from Chiang Kuo-ch'ing's death.

As the written judgment has not yet been officially announced, other highlights that can be generally gleaned include clarifying the legal application between the *Criminal Compensation Act* and the *State Compensation Act*, such as the starting point for the statute of limitations regarding the Ministry's right of recourse against public officials. Additionally, the judge explicitly pointed out that even when seeking recourse under the *Criminal Compensation Act*, military prosecutor Huang Jui-p'eng is entitled to the immunity from liability provisions under Article 13 of the State Compensation Act.

Dragging Feet on Criminal Accountability?

Compared to the decisiveness of the Taipei District Court's civil division, the criminal accountability portion of the Chiang Kuo-ch'ing case still lies dormant in the Taipei District Prosecutors Office, having passed another year and a half since the second non-prosecution disposition was remanded for re-investigation. These back-and-forths are disheartening, making holding the state accountable feel exceedingly difficult. In particular, having experienced an authoritarian period in its system and structure, Taiwan suffers from a very low awareness among public officials regarding human rights violations, yet transitional justice has never been truly implemented. Pursuing the responsibilities of the highest-ranking public officials stemming from the most conservative military is truly arduous. These various difficulties render this civil judgment all the more significant.

The Ministry of National Defense won the lawsuit, but instead of immense joy, it feels somewhat surprised—as if it accidentally won a game it intentionally or unintentionally wanted to throw. In fact, the *Criminal Compensation Act* does not mandate a "full-extent hunt" against public officials. Taking Teng Chen-huan as an example, if the Ministry believed that during that era of "authoritarian remnants," both military culture and military human rights perspectives ought to bear some responsibility, and Teng was willing to repent and apologize, then the military, as one of the "wrongdoers," lacked the grounds to demand that Teng bear "full" responsibility. Thus, an "under-amount" settlement with him carried some logical weight.

However, all of this rests on the premise that the military and Teng Chen-huan join hands in a sincere apology, make commitments to reform, and genuinely implement them. If even the most basic apology is missing, how can there be forgiveness? How can one brazenly speak of an "under-amount" settlement? Ch'en Chao-min's evasion, Ho Tsu-yao's protests of innocence, the Ministry's passivity, and the Prosecutor's Office's procrastination are all collective evasions of state responsibility and self-protection by a complicit structure. When the state and public officials can finally face reality together, apologize together, take responsibility together, and reconcile together—that will be the moment when transitional justice is realized.