Observations on the Individual Evaluation System under the Judges Act: A Report for the National司改 Conference

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Obstacle 1 The Public Cannot Directly Request Evaluations

The Judges Act has very specific provisions regarding the initiation of the individual evaluation system, strictly limiting the right to request individual evaluations from the JEC or PEC solely to the agencies, organizations, or groups specified in Article 35, Paragraph 1 of the Judges Act^[4]. During the legislative process, the JRF consistently advocated that case parties who have direct contact with judges and prosecutors and are directly affected should have the right to submit evaluation requests to the evaluation commissions. However, official representatives opposed this, fearing that an influx of public grievances would exceed the manpower capacity of the evaluation commissions, and insisted on designating certain agencies and groups to help filter out "frivolous lawsuits," stipulating that evaluation requests could only be submitted by these entities^[5]. The provisions of the Judges Act as ultimately passed adopted this stance. If a case party believes that a judge or prosecutor has been involved in illegal or derelict conduct, they must do so indirectly through authorized requesters acting on their behalf.

Regarding the deprivation of the case parties' eligibility to request evaluations, the JRF considers this highly inappropriate. The reason is that in the past, the initiation of accountability mechanisms for judges and prosecutors was almost entirely controlled within the Judicial Yuan and the Ministry of Justice, with no direct grievance channels for case parties; nor was the process by which the Judicial Yuan and the Ministry of Justice filtered and identified incompetent judges and prosecutors made public. Criticisms of "protecting one's own officials" thus arose from this. Conversely, if complaints from case parties could be accepted on the front lines, and communication and dialogue with case parties could take place during the process of clarifying issues and investigating facts, it would help enhance public understanding and trust in the judiciary. The strict restrictions on the subjects eligible to request evaluations under the current Judges Act cut off the possibility of communication between the JEC/PEC and case parties, thereby weakening the effectiveness of the individual evaluation system in boosting public trust in the judiciary.

To substantively assist the public in submitting individual evaluation requests, the JRF on one hand continued to advocate for legal amendments, while on the other hand deciding to proactively apply to become an organization eligible to request individual evaluations, establishing a Complaint Center in 2012 to publicly accept public complaints. In fact, according to the Judges Act, the sources of cases for the JEC and PEC include both official entities (the Judicial Yuan and courts at all levels, the Ministry of Justice and prosecutors' offices at all levels, and joint petitions by three or more judges or prosecutors) and civil society (bar associations and legally permitted civil organizations). Compared to civil society, official entities possess greater resources and power, and one would imagine they could more swiftly and effectively uncover underperforming judges and prosecutors. However, data shows that civil society is actually the primary source of cases for the JEC and PEC (see Tables 2-1 and 2-2).

（Source of tabulated data: Judges Evaluation Commission Website）

（Source of tabulated data: Prosecutors Evaluation Commission Website）

However, a simple glance at the data over the years reveals that the number of requests originating from civil society fluctuates. Taking the JRF as an example, although members of the public continued to petition the JRF for prosecutor evaluations, the number of prosecutor evaluation requests submitted by the JRF dropped sharply in 2015; in 2016, the JRF did not even request individual evaluations for any prosecutor from the PEC (Table 2-3).

In fact, among the cases petitioned by the public to the JRF, there is no shortage of prosecutors involved in illegal or derelict conduct. However, two factors—"inability to assess whether grounds for evaluation exist" and "foreseeable expiration of the two-year time limit for requesting evaluations"—rendered submitting an individual evaluation request virtually unviable as an option when the JRF considered what actions to take.

1. Inability to Assess Whether Grounds for Evaluation Exist

   A preliminary categorization of the cases of public petitions for prosecutor evaluations accepted by the JRF in 2016 roughly divides them into six categories (Table 2-4): failure to comply with procedural regulations such as litigation laws, abuse of discretionary non-prosecution, abuse of discretionary prosecution, inappropriate administrative filing (administrative close-out), poor demeanor during interrogation, and abuse of compulsory measures. All of these require reviewing the investigative dossier and actually listening to the interrogation audio recordings in order to clarify the facts for which evaluation is requested. However, for three of these categories—abuse of discretionary non-prosecution, inappropriate administrative filing, and poor interrogation demeanor—when members of the public petition the JRF, they are restricted by the rule that case files can only be reviewed after an indictment is filed or when an application for trial committal is made, making it nearly impossible for them to provide investigative dossiers or interrogation audio recordings. Regarding the investigative dossier, under Article 258-1 of the Code of Criminal Procedure, in cases where a defendant obtains a non-prosecution or suspension of prosecution disposition, criminal informants/complainants are restricted to commissioning a lawyer to review the dossier only when applying for trial committal. However, because trial committal applications legally mandate lawyer representation and must be submitted within ten days after receiving the disposition dismissing the application for re-examination, very few criminal informants/complainants apply for trial committal, and naturally they cannot obtain the investigative dossier; administrative filing is not regulated by the Code of Criminal Procedure, but is rather a prosecutorial closing method developed in practice, and criminal informants/complainants also cannot obtain dossier materials. Regarding interrogation audio recordings, although Article 90-1 of the Court Organization Act was added on July 1, 2015^[8] to relax the requirements for obtaining courtroom audio recordings, by interpretation, interrogation audio recordings are not the subject of this law. Obtaining recordings of the interrogation room must revert to general criminal case file-review regulations, and criminal informants/complainants will encounter similar predicaments. Consequently, when the petitioner's procedural status is that of a criminal informant/complainant, the JRF is virtually unable to audit the actual investigative actions of the petitioned prosecutor, let alone assess whether grounds for evaluation under Article 89, Paragraph 4 of the Judges Act exist. This also explains why, among the cases where the JRF evaluated not to request prosecutor evaluations in 2016, nearly half lacked detailed information such as dossier materials and interrogation audio recordings (Figure 2-1)

   Table 2-4: Categories of Public Petitions for Prosecutor Evaluations Accepted by JRF in 2016

   Category	Failure to Comply with Litigation Law & Other Case-Handling Procedures	Abuse of Discretionary Non-Prosecution	Abuse of Discretionary Prosecution	Inappropriate Administrative Filing	Poor Interrogation Demeanor	Abuse of Compulsory Measures
   Number of Cases	12	20	7	5	5	1

   Figure 2-1: Statistics on Reasons for Evaluating Not to Submit Evaluation Requests for Public Petitions Received by JRF in 2016^[9]

   Reason	Number of Cases
   Prosecutor Did Not Violate Case-Handling Procedures	4
   Evaluation Requested Based on Legal Interpretation	9
   Lacking Dossier Materials & Interrogation Audio	21
   Exceeded Time Limit for Evaluation Request	7
   Case Party Lacks Willingness to Petition	2

2. Foreseeable Expiration of the Two-Year Time Limit for Requesting Evaluations

   The initiation of individual evaluations under the Judges Act requires that when the JEC and PEC handle evaluation request events, they must first undergo a formal review to confirm that none of the circumstances precluding evaluation set forth in Article 37 of the Judges Act apply^[10] before proceeding to a substantive review of whether grounds for evaluation exist. As mentioned in Chapter 2, the JRF's handling of public petitions for judge and prosecutor evaluations relies heavily on the participation of volunteer lawyers. Given limited resources, the procedural matters stipulated in Article 37 of the Judges Act also become items for primary confirmation by the JRF, among which "exceeding the evaluation request period" (Article 37, Paragraph 2 of the Judges Act) and "requesting evaluation based on legal interpretation" (Article 37, Paragraph 4 of the Judges Act) rank as the second and third most common reasons for the JRF's assessment not to submit prosecutor evaluation requests.

   The root cause of "exceeding the evaluation request period" making the list is actually that the PEC has virtually hollowed out the exception rule concerning the time limit for individual evaluation requests through its resolutions. To elaborate, Article 36 of the Judges Act stipulates that the time limit for requesting individual evaluations of judges is 2 years. For individual evaluation requests involving cases handled by judges, the 2-year time limit in principle starts from the time the "case is concluded"^[11], with an exception extending the start date to "when the judgment becomes final or the court has accepted the case for 6 years" in cases of "obvious and gross errors in the case"^[12]. However, the Judges Act does not have direct and explicit provisions regarding the calculation of the time limit for individual prosecutor evaluation requests; by interpretation, it is necessary to apply mutatis mutandis Article 36 of the Judges Act pursuant to Article 89, Paragraph 1 of the Judges Act, thereby indirectly inferring whether a prosecutor evaluation request is submitted within the "statutory" time limit.

   Regarding the issue of how to calculate the time limit for individual prosecutor evaluation requests, the first-generation PEC, in addition to referencing the interpretive views of JEC resolutions by defining the "date of case conclusion" as the day the "case leaves the evaluated prosecutor and the investigative result cannot be altered" (i.e., the date of indictment, non-prosecution, or suspension of prosecution), also affirmed that the scope of mutatis mutandis application under Article 89, Paragraph 1 of the Judges Act includes the proviso of Article 36, Paragraph 2. It stated that if the evaluated prosecutor "intentionally and gravely infringed upon the rights of the people, resulting in an obvious and gross error in the investigative case," the time limit for requesting evaluation could be extended to start from the date the court judgment becomes final^[13].

   Viewed solely from the normative structure of Article 36 of the Judges Act, starting the time limit for requesting individual judge evaluations from the date a judgment becomes final is an exception rule, aiming to prompt evaluation requests to be made as early as possible through a request period much shorter than the exercise period for disciplinary actions stipulated in the Public Functionary Discipline Act^[14], ^[15]. However, since the JRF established its Complaint Center in 2012 to accept public petitions for individual evaluations of judges and prosecutors, experience from telephone consultations and actual case intake shows that, constrained by the rule that dossiers can only be reviewed after indictment or application for trial committal, those who can prepare materials enabling the JRF to confirm the submission of a prosecutor evaluation request are predominantly indicted defendants. Nonetheless, most indicted defendants are exhausted fighting trial proceedings and simply have no time to think about petitioning for individual evaluation requests against prosecutors. By the time trial proceedings come to an end, two years have often long since passed since the date of indictment. When the existing normative form remains unchanged, active application by the PEC of the exception rule regarding request time limits is the key to preventing the individual prosecutor evaluation system from falling into an unworkable state.

   Judging from the resolution texts, not only did the second-generation PEC fail to make attempts like the first-generation PEC to broaden the calculation method for the time limit extension point, but it even created requirements absent from the wording of the Judges Act, leaving the exception rule with zero room for application (see Table 2-5).

   For example, in resolutions such as 2014 Prosecutorial Evaluation Word No. 11, 2015 Prosecutorial Evaluation Word No. 003, and 2015 Prosecutorial Evaluation Word No. 009, the PEC uniformly categorized the misconduct patterns of the evaluated prosecutors under other matters pursuant to Article 89, Paragraph 4, Subparagraph 1 of the Judges Act, deeming them non-compliant with the normative requirements of Article 37, Paragraph 5 of the Enforcement Rules of the Judges Act^[16], thus leaving no room for mutatis mutandis application of the exception rule. This demonstrates that the PEC rigidly and inflexibly determined regarding individual prosecutor evaluation requests that Article 89, Paragraph 4, Subparagraph 1 and other subparagraphs of the Judges Act cannot coexist. Once a prosecutor's misconduct is more easily subsumed under other subparagraphs, it ceases to consider whether it might simultaneously conform to Article 89, Paragraph 4, Subparagraph 1 of the Judges Act.

   Even worse, in 2014 Prosecutorial Evaluation Word No. 15, the evaluated prosecutor was involved, upon application to revoke detention, in orally instructing the defendant not to return to work and not to communicate with defense counsel, which manifestly infringed upon the defendant's right to work and right to counsel. Although the JRF forcefully argued that this met the misconduct facts regulated under Article 89, Paragraph 4, Subparagraph 1 of the Judges Act, the PEC misinterpreted the wording of Article 89, Paragraph 4, Subparagraph 1, restricting the fact of "intentional or gross negligence leading to obvious and gross errors and serious infringement of people's rights" to those that "must await a final judgment to be established." This has truly exceeded the scope of statutory interpretation.

   Table 2-5: List of Cases Dismissed on Grounds of Exceeding the Two-Year Time Limit by the Second-Generation PEC

   Case Number	Grounds for Evaluation Requested	Reason for Time-Barred Dismissal
   2013 Prosecutorial Evaluation Word No. 22	The prosecutor handling a major case did not personally conduct court hearings; all 11 investigative court sessions were investigated by judicial investigators, and the non-prosecution written opinion contained errors throughout.	The Enforcement Rules of the Judges Act did not separately prescribe retroactive application for Article 36. Therefore, the 2-year time limit for prosecutor evaluation should start from the date the case handling is concluded, rather than the date it became eligible for individual evaluation under the Judges Act (Jan. 6, 2012). The time point when the JRF submitted the prosecutor evaluation request exceeded the 2-year period from the date the case handling was concluded (Mar. 1, 2011, dismissal of re-examination application).
   2014 Prosecutorial Evaluation Word No. 01	Appealing to the Supreme Court without specifying how the original judgment violated the law, thereby filing a frivolous appeal.	The Enforcement Rules of the Judges Act did not separately prescribe retroactive application for Article 36. Therefore, the 2-year time limit for prosecutor evaluation should start from the date the case handling is concluded, rather than the date it became eligible for individual evaluation under the Judges Act (Jan. 6, 2012). The time point when the JRF submitted the prosecutor evaluation request exceeded the 2-year period from the date the case handling was concluded (Nov. 28, 2010, third-instance appeal).
   2014 Prosecutorial Evaluation Word No. 02	Appealing to the Supreme Court without specifying how the original judgment violated the law, thereby filing a frivolous appeal.	The time point when the JRF submitted the prosecutor evaluation request exceeded the 2-year period from the date the case handling was concluded (May 11, 2010, third-instance appeal).
   2014 Prosecutorial Evaluation Word No. 03	Appealing to the Supreme Court without specifying how the original judgment violated the law, thereby filing a frivolous appeal.	The Enforcement Rules of the Judges Act did not separately prescribe retroactive application for Article 36. Therefore, the 2-year time limit for prosecutor evaluation should start from the date the case handling is concluded, rather than the date it became eligible for individual evaluation under the Judges Act (Jan. 6, 2012). The time point when the JRF submitted the prosecutor evaluation request exceeded the 2-year period from the date the case handling was concluded (June 1, 2010, third-instance appeal).
   2014 Prosecutorial Evaluation Word No. 04	After declaring an appeal to the Supreme Court, absolutely no statement of appeal reasons was submitted.	The Enforcement Rules of the Judges Act did not separately prescribe retroactive application for Article 36. Therefore, the 2-year time limit for prosecutor evaluation should start from the date the case handling is concluded, rather than the date it became eligible for individual evaluation under the Judges Act (Jan. 6, 2012). The time point when the JRF submitted the prosecutor evaluation request exceeded the 2-year period from the date the case handling was concluded (Jan. 18, 2007, third-instance appeal).
   2014 Prosecutorial Evaluation Word No. 05	Appealing to the Supreme Court for the crime of fraud and acquisition of property, which by law cannot be appealed to the third instance.	The Enforcement Rules of the Judges Act did not separately prescribe retroactive application for Article 36. Therefore, the 2-year time limit for prosecutor evaluation should start from the date the case handling is concluded, rather than the date it became eligible for individual evaluation under the Judges Act (Jan. 6, 2012). The time point when the JRF submitted the prosecutor evaluation request exceeded the 2-year period from the date the case handling was concluded (Apr. 28, 2011, third-instance appeal).
   2014 Prosecutorial Evaluation Word No. 06	Although the defendant was acquitted in the first and second instances, without knowing the provisions of Article 9 of the Criminal Speedy Trial Act, a frivolous appeal was filed to the Supreme Court.	The time point when the JRF submitted the prosecutor evaluation request exceeded the 2-year period from the date the case handling was concluded (June 2, 2011, submission of appeal reasons statement).
   2014 Prosecutorial Evaluation Word No. 11	When investigating the corruption case involving Ch'u I-hsiung (Qiu Yixiong), leaked to the media that the "Anya Project" involved classified diplomacy, seriously violating the principle of non-disclosure of investigations and leaking state secrets.	The Enforcement Rules of the Judges Act did not separately prescribe retroactive application for Article 36. Therefore, the 2-year time limit for prosecutor evaluation should start from the date the case handling is concluded, rather than the date it became eligible for individual evaluation under the Judges Act (Jan. 6, 2012). The evaluation grounds raised by the JRF against the prosecutor (violation of non-disclosure of investigations) pertained to circumstances under Article 89, Paragraph 4, Subparagraph 5 of the Judges Act, rather than Article 89, Paragraph 4, Subparagraph 1. Therefore, the 2-year limitation period for requesting individual evaluation in this case could not start from "when the judgment becomes final" (Article 36, Paragraph 2, latter half of the Judges Act). The time point when the JRF submitted the prosecutor evaluation request exceeded the 2-year period from the date the case handling was concluded (Sept. 22, 2009, conclusion of investigation and institution of prosecution).
   2014 Prosecutorial Evaluation Word No. 13	Perfunctory case investigation, frivolously prosecuting the defendant based on facts contradictory to the professional opinions of physicians.	The time point when the Taipei Bar Association submitted the prosecutor evaluation request exceeded the 2-year period from the date the case handling was concluded (Sept. 28, 2011, conclusion of investigation and institution of prosecution).
   2014 Prosecutorial Evaluation Word No. 15	Upon agreeing to an application to revoke detention, orally instructing the defendant not to return to work and simultaneously not to communicate with defense counsel, abusing compulsory measures and seriously infringing upon the defendant's right to work and right to counsel.	The evaluation grounds raised by the JRF against the prosecutor (oral instruction not to return to work) can be established without waiting for a final judgment, failing to meet the circumstances prescribed in Article 89, Paragraph 4, Subparagraph 1. Therefore, the 2-year limitation period for requesting individual evaluation in this case could not start from "when the judgment becomes final" (Article 36, Paragraph 2, latter half of the Judges Act). The time point when the JRF submitted the prosecutor evaluation request exceeded the 2-year period from the date the case handling was concluded (June 30, 2011, conclusion of investigation and institution of prosecution).
   2015 Prosecutorial Evaluation Word No. 003	When investigating a drug trafficking case, two years after a co-defendant was arrested, using a defendant photograph displayed via a remote system to command the co-defendant to make a single identification; after the co-defendant had already formed a mistaken impression, interrogating the co-defendant once more and presenting the defendant's photograph for identification without informing them that the accomplice might not be among them, leading the co-defendant to make a mistaken identification.	The involvement of the evaluated prosecutor pertained to circumstances under Article 89, Paragraph 4, Subparagraph 5 of the Judges Act, rather than Article 89, Paragraph 4, Subparagraph 1. The time limit for the individual evaluation request still starts from the time the case is concluded (indictment), rather than when the judgment becomes final (Supreme Court judgment dismissing the appeal), thereby exceeding the two-year request time limit.
   2015 Prosecutorial Evaluation Word No. 009	When investigating a defendant for the crime of injury resulting in death, intimidating the defendant into confessing with words such as "If you are not honest, his ghost will come looking for you."	Improper interrogation of the defendant involving ghost retaliation and detention threats pertains to allegedly violating Article 89, Paragraph 4, Subparagraph 7 of the Judges Act ("serious violation of prosecutorial ethics norms with grave circumstances"), and does not pertain to individual evaluation matters under Subparagraph 1 of the same paragraph. The 2-year limitation period for individual evaluation thus still has no room for application to start from "when the judgment becomes final."

   In short, when the Judges Act was legislated, the specificity of prosecutorial evaluation events was not taken into account, and it rigidly applied the same principle of request time limits as judge evaluation events. Coupled with the fact that the PEC, which holds the discourse power within the individual evaluation system, strictly interprets the exception rule and even creates requirements absent from the textual interpretation of the Judges Act, this profoundly impacted the JRF's handling of public petitions for prosecutor evaluations. When encountering cases where more than two years had elapsed since the indictment/non-prosecution disposition was rendered, the JRF was forced to abandon the option of submitting evaluation requests.

   If the aforementioned predicaments encountered by the JRF in assisting the public to submit individual prosecutor evaluation requests are placed in the context of the Judges Act's expectation for civil society requesting groups to "sift the sand to find the gold," it fully demonstrates that, constrained by time limit regulations and petitioners' abilities to obtain dossiers and evidence, civil groups' requesting capabilities are far inferior to official ones.

   On the other hand, contrasting the number of people referred for judge evaluation or to the Control Yuan from the "judges' self-regulation system" (9 people) with the number of internal disciplinary penalties resolved (47 people)^[17] after the implementation of the Judges Act reveals a stark disparity. This indicates that official authorities still prefer to handle judges involved in derelict conduct through internal self-imposed penalties rather than initiating external mechanisms such as individual evaluations and the JEC^[18]. Consequently, the JEC's function of filtering and identifying incompetent judges is weakened, which in turn makes it virtually impossible to fulfill the task of utilizing information gathered by the JEC during evaluation cases to feed back into the judicial system and establish comprehensive evaluation indicators^[19], easily drawing criticisms of ineffectiveness.

   Accordingly, when the JEC and PEC heavily rely on civil requesting groups to initiate the operation of the individual evaluation system, they inevitably lose many deliberation opportunities and are easily vulnerable to criticisms of ineffectiveness.

Obstacle 2 Overlapping and Duplicative Accountability Mechanisms for Judges and Prosecutors

Before the enactment of the Judges Act, the accountability and exit mechanisms for illegal and derelict conduct by judges and prosecutors were not outside the scope of accountability mechanisms; rather, they mirrored those of general civil servants under the Public Functionary Discipline Act. The Judges Act drove reforms in the accountability system for judges and prosecutors. On one hand, it responded to external interference concerns arising from the application of the civil service disciplinary system to judges and prosecutors; on the other hand, it established the individual evaluation system as a preliminary procedure for disciplinary actions and administrative penalties. By introducing diverse external members to form evaluation commissions, it enabled the individual evaluation system to simultaneously possess a mechanism of external supervision, thereby boosting public trust in the impartiality of the evaluation commissions^[20].

However, in the normative design of the Judges Act, according to the types of procedures successively initiated by the JEC and PEC—whether discipline or punishment—they respectively link to Control Yuan impeachment → Judicial Yuan Disciplinary Court adjudication of discipline, and personnel review → approval of punishment. Only after the Disciplinary Court renders a judgment, or the Judicial Yuan Personnel Review Committee (hereinafter Judicial Yuan PRC) and the Prosecutors Personnel Review Committee (hereinafter PRC) render resolutions, can the legal effects of discipline/punishment be confirmed as occurring. The evaluated judge/prosecutor does not immediately obtain disciplinary or punitive accountability upon the creation of the JEC/PEC evaluation resolution. At this point, a question is triggered: do the JEC/PEC evaluation resolutions regarding evaluation facts, the subsumption of evaluation grounds, and the determination of the necessity of discipline/punishment bind the implementers of subsequent procedures such as the Control Yuan, Judicial Yuan PRC, and PRC?

The JEC and PEC commenced operations on January 6, 2012. Among the evaluation cases concluded so far, the JEC has initiated subsequent disciplinary/punitive procedures for 25 cases, and the PEC for 23 cases (Tables 3-1 and 3-2).

Upon tracking these cases entering subsequent disciplinary/punitive procedures, the JRF found that the aforementioned questions are not purely academic discussions; discrepancies have indeed occurred between the Control Yuan's impeachment decisions, the Judicial Yuan PRC/PRC's penalty decisions, and the contents of the JEC/PEC resolutions:

1. Facts Subject to Evaluation Fail to Reach the Disciplinary Court

   • (1) Control Yuan Impeachment Fails to Pass: PEC 2013 Prosecutorial Evaluation Word Nos. 16, 18, and 19

     The JRF and the Ministry of Justice requested individual evaluations from the PEC on the grounds that then-Prosecutor-General Huang Shih-ming (Huang Shiming), Special Investigation Division (SID) Division Chief Yang Jung-tsung (Yang Rongzong), and SID Prosecutor Cheng Shen-yuan (Zheng Shenyuan) committed serious violations of prosecutorial ethics norms—such as abusive wiretapping, unlawful public disclosure of wiretapping transcripts, leaking secrets, disrupting institutional order in violation of administrative ethics, and abusively holding press conferences—while handling the 2011 Special-Other Case No. 61 concerning Judge Ch'en Jung-ho's (Chen Ronghe) corruption. The PEC adopted resolutions under 2013 Prosecutorial Evaluation Word Nos. 16, 18, and 19, determining that evaluated person Huang Shih-ming necessitated discipline and reporting him through the Ministry of Justice to the Control Yuan for review with a recommendation for removal from office; evaluated person Yang Jung-tsung necessitated discipline and reporting him through the Ministry of Justice to the Control Yuan for review with a recommendation for a reprimand; and evaluated person Cheng Shen-yuan necessitated discipline and reporting him through the Ministry of Justice to the Control Yuan for review with a recommendation for a reprimand. Among them, regarding evaluated person Huang Shih-ming, impeachment proposals were submitted twice by Control Members and both failed to pass^[21].

   • (2) Scope of Impeachment Smaller than Recommended Disciplinary Scope: JEC 2014 Evaluation Word No. 1 (Consolidated with 2014 Evaluation Word No. 5 and 2015 Evaluation Word No. 1)

     The JRF submitted individual evaluation requests to the JEC concerning Judge Tseng Yu-ming (Zeng Yuming) for involvement in violations of judicial ethics norms across three cases he presided over while serving at the Taoyuan District Court. The JEC adopted a resolution under 2014 Evaluation Word No. 1 (consolidated with 2014 Evaluation Word No. 5 and 2015 Evaluation Word No. 1), reporting him through the Judicial Yuan to the Control Yuan for review with a recommendation to remove him from his judicial position and transfer him to non-judicial duties. On June 14, 2016, the Control Yuan impeached Judge Tseng Yu-ming under 2016 Impeachment Word No. 21. However, upon comparing the investigation report produced by the Control Yuan on July 13, 2016, it was found that the scope of the Control Yuan's impeachment covered only the facts subject to evaluation identified in 2015 Evaluation Word No. 1, which was far smaller than the scope of discipline recommended by the JEC (Table 3-3).

     Table 3-3: Comparison Table of JEC Recommended Disciplinary Scope and Control Yuan Impeachment Scope

     	JEC Resolution	Control Yuan Investigation
     2014 Evaluation Word No. 1	Violated Articles 3, 4, and 12 of the Judicial Ethics Norms, with grave circumstances, necessitating discipline: 1 According to the court clerk's testimony before the JEC, the evaluated judge indeed loudly reprimanded defendants Chuang XX and Chuang-Liu XX due to Chuang XX slumping down during interrogation, constituting improper speech and conduct. 2 Moreover, according to the testimony of a courtroom attendant from another courtroom, the evaluated judge's attitude in prohibiting defendants from cross-examining reached such a volume of loud reprimand on the 1st floor that it could be perceived as "raging," and even reached a degree where the courtroom attendant on the 2nd floor could hear it. It is thus clearly established that the evaluated judge's behavior and conduct during the prohibition of defendants' cross-examination ran contrary to ethical norms requiring judges to maintain patience and a sincere, courteous demeanor in litigation direction and interrogation, and prohibiting harsh tones.	Whether the circumstances constitute grounds for punishment by a person holding administrative supervision power under Article 21 of the Judges Act is appropriately referred to the Judicial Yuan for consideration.   1 Judge Tseng Yu-ming did not have an audio recording file of the court session when presiding over fraud case 2013 Yi Word No. 225 at the court on May 15, 2013. 2 Parties and witnesses only made statements based on personal memory, which is insufficient to prove that Tseng Yu-ming violated the Judges Act or judicial ethics norms with grave circumstances, thereby constituting grounds for discipline under Article 49 of the Judges Act. The factual statements in the testimonies of the court clerk and Chuang-Liu XX were inconsistent. The courtroom attendant from another courtroom merely heard what sounded like high-decibel sounds emanating from that courtroom upstairs. Defendant Chuang XX suffered from severe hearing impairment.
     2014 Evaluation Word No. 5	Violated Article 166, Paragraphs 1 and 4 of the Code of Criminal Procedure, with grave circumstances, necessitating discipline:   During the defense counsel's examination-in-chief, the evaluated judge, not for the purpose of clarifying unclear or inconsistent witness answers, repeatedly and unilaterally interrupted the examiner, ex officio intervening to interrogate questions unrelated to those examined by defense counsel. Furthermore, disregarding defense counsel's objection that "the witness is giving evasive answers," he improperly directed the transcript to record all answers given by witness Lin XX to the evaluated judge's aforementioned intervention as responses to examinations by defense counsel Attorney Chang XX.	Whether the circumstances constitute grounds for punishment by a person holding administrative supervision power under Article 21 of the Judges Act is appropriately referred to the Judicial Yuan for consideration:   Although Judge Tseng Yu-ming repeatedly intervened in advance to supplement interrogations during cross-examination while presiding over obscenity case 2013 Jian-Shang Word No. 492 at the court on March 4, 2014, he asked the witness to make further complete statements regarding their descriptions, and the interrogation content was not entirely unrelated to the questions defense counsel intended to examine. He also prompted the witness to answer defense counsel's questions, and there is no evidence proving that he infringed upon the defense counsel's exercise of the right to cross-examine or distorted the core intent of the witness's statements with grave circumstances, thereby constituting grounds for discipline under Article 49 of the Judges Act.
     2015 Evaluation Word No. 1	Violated Articles 3, 4, and 12 of the Judicial Ethics Norms, with grave circumstances, necessitating discipline:   Simply because a defendant repeated cross-examination and statements were interrupted by the defendant, the evaluated judge unexpectedly berated the defendant multiple times with extremely loud volume and a furious attitude, and then intimidated them by infringing upon their personal liberty, stating that the defendant was "asking to be detained" or intended to "detain the defendant." Consequently, this led the defendant Tsai XX to repeatedly engage in self-harming behaviors such as banging his head against the desktop.	Manifestly violated ethical norms and should be subject to discipline

2. Personnel Review Committees Resolve Not to Punish

   • (1) Judicial Yuan PRC Overturns JEC Determination of Necessity of Punishment: 2014 Evaluation Word No. 14

     The JRF requested individual evaluations from the JEC on the grounds that Judge Wang XX, Judge Chen XX, and Judge Huang XX, while serving at the High Court and forming a collegiate panel presiding over a retrial remanded by the Supreme Court concerning defendant Wang XX for the crime of joint injury resulting in death, stated in the grounds for the first and second extensions of detention: "As the defendant was previously sentenced to 2 years imprisonment with 5 years probation confirmed for an offense against the Narcotics Hazard Prevention Act, and subsequently had probation revoked, because he failed to appear for execution and thus became wanted... there are sufficient reasons to believe the defendant is a flight risk." However, this pertained to the criminal record of another co-defendant, containing the error of confusing identities. The JEC adopted a resolution under 2014 Evaluation Word No. 14 reporting judges Wang XX, Chen XX, and Huang XX through the Judicial Yuan to be deliberated by the Judicial Yuan Personnel Review Committee. It recommended a warning penalty for Judge Wang XX and Judge Chen XX, and an order urging attention for Judge Huang XX.

     The Judicial Yuan PRC announced on November 15, 2016, that former judge and division chief Wang XX and judge Chen XX, affiliated with the court, who collegiate-judged cases in violation of judicial ethics norms, were given the penalty of an oral warning^[22], while no penalty content regarding Judge Huang XX was seen. Upon telephoning the Director of the Department of Personnel of the Judicial Yuan on November 23, 2016, the JRF was informed by the Director that the Judicial Yuan PRC considered that accompanying judges had already received sufficient caution through the evaluation procedure and resolved not to take disciplinary action.

     In other words, based on the three evaluated judges belonging to the same collegiate panel and having to share joint responsibility for the flaws in the detention extension rulings—with accompanying judges merely having a lesser degree of culpability yet still necessitating accountability—the JEC's determination that accompanying judges necessitated punishment was overturned by the Judicial Yuan PRC, which inflicted no penalty whatsoever upon the accompanying judges.

   • (2) PRC Overturns PEC Determination of Circumstances Warranting Discipline: 2014 Prosecutorial Evaluation Word No. 5

     Member of the public Tsai XX petitioned the JRF, stating that Prosecutor Kuo XX acted as the attending prosecutor for Taoyuan District Court 2013 Su Word No. 852 forgery case, and during the trial proceeding on February 27, 2014, ordered bailiffs to put handcuffs on the defendant, seriously infringing upon the defendant's personal liberty and right to reputation. After reviewing relevant dossiers and evidence, the JRF considered that Prosecutor Kuo's aforementioned conduct seriously violated duty regulations such as the Court Organization Act, and accordingly requested the PEC to conduct an individual evaluation of Prosecutor Kuo XX. Because courtroom video footage clearly showed that Ms. Tsai had already been subdued in her seat by multiple bailiffs during her very first head-banging, posing no threat to the personal safety of herself or others present in court, yet Prosecutor Kuo—because Ms. Tsai continued to cry and tearfully accuse the prosecutor of being a dinosaur after being subdued—"without awaiting instructions from the presiding judge, directly spoke out and used hand gestures to command bailiffs to handcuff the defendant on the spot," this clearly transgressed the statutory authority of the presiding judge's litigation direction. The PEC resolved that the request grounds were founded, but considering that the evaluated prosecutor was relatively junior in seniority and encountered emotional out-of-control behavior by the defendant, did not send her to the Control Yuan, instead transferring her internally to be deliberated by the Prosecutors Personnel Review Committee^[23]. However, according to media reports^[24] and the contents of an official document by which the Ministry of Justice replied to the JRF's inquiry regarding the PRC resolution results on May 19, 2016^[25], the PRC resolution result was "no penalty," on the grounds that "Kuo's actions were merely urging the presiding judge to maintain courtroom order... and did not infringe upon the presiding judge's litigation direction power...", demonstrating that the PRC re-investigated and re-determined the facts warranting discipline found by the PEC, thereby overturning the PEC's determination of the necessity of punishment.

     The four examples enumerated above seem to imply that in the multi-stage discipline/punishment procedures, the JEC and PEC merely play the role of initiators, while the Control Yuan, Judicial Yuan PRC, and PRC can re-determine facts and re-evaluate the necessity of discipline/punishment entirely unbound by the resolutions of the JEC and PEC. This inevitably raises the question: such complex procedural design in the Judges Act is simply overlapping and duplicative, rendering the accountability mechanism for judges and prosecutors lengthy and inefficient.

     Worse still, commentators point out that the aforementioned cases where the JEC and PEC encountered setbacks in personnel review committees touch even more directly upon the fundamental question of the JEC and PEC's raison d'être: compared to the JEC and PEC being independent bodies that independently conduct judge and prosecutor evaluations^[26], the Judicial Yuan PRC and PRC are merely units enclosed within the internal confines of the Judicial Yuan and the Ministry of Justice. If they are permitted to re-determine facts and re-determine the necessity of punishment, the individual evaluation system—which concurrently possesses the nature of external supervision—is tantamount to being hollowed out by personnel review procedures of internal closed organizations, further weakening the status and functions of the JEC and PEC and severely striking the credibility of the individual evaluation system^[27].

Possible Future Directions for Reform

Summarizing the implementation status of the individual evaluation system for over five years, we found two factors unfavorable to the system's functioning: (1) the public cannot directly request individual evaluations, and (2) accountability mechanisms for judges and prosecutors are overlapping, duplicative, and even mutually contradictory.

Limited by resources and time, this observational report cannot exhaustively explore all issues regarding the actual operation of the individual evaluation system, but it hopes to take these two factors as a starting point to call upon the Judicial Reform Conference of the Office of the President, Division 3, to return to the legislative original intent of "enhancing public trust in the judiciary," re-examine the individual evaluation system, clarify the positioning of the JEC and PEC within the overall accountability mechanism, and reconstruct the supervision chain of judges and prosecutors in the direction of enhancing external supervisory energy.