Op-Ed | Budget-Friendly Judicial Reform: Follow Germany's Lead!

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According to a report by China Times Electronic News on March 13, 2017, titled "Preventing Frivolous Lawsuits Like Germany: Unrelated to Public Interest, Shift to Private Prosecution," because the current system of criminal complaints is free of charge, litigious individuals readily file charges. Examples include suing for defamation over mutual insults on the internet, suing for copyright infringement over copied online images, or suing for violations of the Personal Data Protection Act because a building management committee posted a notice urging the payment of management fees—the list goes on. Most of these cases do not result in prosecution, yet prosecutors must invest time and energy investigating them.

The pervasive phenomenon of "frivolous lawsuits" not only distresses defendants but also overburdens prosecutors, making reform imperative. This report echoes recent op-eds by quite a few grassroots prosecutors suggesting that, to curb frivolous lawsuits and allow prosecutors to focus on investigating major crimes, Taiwan could emulate Germany by adopting mandatory private prosecution—where private prosecutors must bear the costs (whereas Taiwan's current private prosecution system does not charge fees)—for minor offenses unrelated to the public interest, such as defamation. By imposing cost burdens and mandatory attorney representation to deter "frivolous lawsuits," or simply by decriminalizing such offense types that bear no relation to the public interest, this issue could be addressed.

In Sinitic culture, there is indeed a long-standing tradition of using criminal charges to pressure civil opponents, but it is overly arbitrary to label all unsuccessful complainants who report offenses infringing upon individual legal interests—such as defamation, fraud, breach of trust, or embezzlement—as filing frivolous lawsuits. The ultimate grounds for a non-prosecution disposition may be that the alleged facts clearly do not constitute a crime, that the offense is too minor to prosecute, or, most commonly, that the evidence is deemed insufficient following investigation. Regardless of the reason, all of these represent the subjective judgment of a prosecutor. Therefore, using a non-prosecution outcome as the benchmark for a frivolous lawsuit means that whether a lawsuit is frivolous is entirely up to the prosecutor. In fact, there is simply no objective standard to determine which lawsuits are frivolous. In particular, since prosecutors bear the responsibility of investigation, if a prosecutor fails to diligently investigate and ultimately issues a non-prosecution disposition due to insufficient evidence, yet can turn around and accuse the complainant of filing a frivolous lawsuit, it effectively allows prosecutors to shift the blame onto complainants—which makes no sense at all. The rhetoric of frivolous lawsuits is actually backed by a "win-or-perish" logic, which shares the exact same mindset as the counter-punishment laws established by ancient magistrates to deter people from filing complaints; the purpose in both cases is to block public petitions in order to alleviate the overwhelming burden on government offices.

Therefore, attempting to solve prosecutors' heavy workloads by deterring so-called frivolous lawsuits is fundamentally missing the mark. The judicial system is established to protect the rights of the people. If victims of the aforementioned minor offenses infringing upon individual legal interests are uniformly required to resort solely to private prosecution (and pay for it), such judicial reform will likely provoke even greater public resentment while merely shifting cases onto the courts—essentially passing the buck to one's neighbors—and will actually differ vastly from the German system it seeks to emulate. Although Germany's private prosecution system is fee-based, it does not stipulate that victims of specific crimes must rely exclusively on private prosecution.

What is worth emulating from Germany is the practical operational approach of its prosecutors. Although German prosecutors are also the subjects responsible for investigation, they recognize that they are legal experts lacking investigative expertise and resources—analogous to having "a head but no hands." Consequently, in practice, investigations are still predominantly led by the police. Typically, the police independently investigate crimes, and only after an investigation reaches a certain stage are the cases forwarded to the prosecutor's office, where prosecutors simply decide whether to indict or not. If a prosecutor considers the police investigation incomplete, they will order the police to supplement the collection of evidence. Only in special circumstances, such as extremely serious crimes, commercial crimes, or organized crime, will prosecutors participate in investigations through verbal instructions. Therefore, German prosecutors do not, as a rule, interrogate defendants or witnesses, nor are there interrogation rooms set up within prosecutor's offices (if an interrogation is exceptionally required, it takes place in the prosecutor's office). In contrast, in Taiwan, holding court sessions in interrogation rooms to question defendants and witnesses consumes the majority of prosecutors' working hours—an extremely inefficient practice compared to Germany.

Aside from interrogation rooms, another task that unnecessarily drains prosecutors' energy and time is drafting non-prosecution dispositions that cite case files and evidence while resembling court judgments in form. They resemble judgments because the Code of Criminal Procedure endows non-prosecution dispositions with substantive finality equivalent to a final judgment. German non-prosecution dispositions (Einstellung des Verfahrens) do not possess substantive finality; hence, aside from expressing the decision to suspend the investigation, they do not require much content. Furthermore, because the prosecutor's office may resume the investigation at any time, there is no need to establish a re-examination (zaiyi) system to determine whether a non-prosecution disposition can become final.

If Taiwan were to emulate Germany's approach, frontline prosecutors handling cases would not only save a great deal of time spent holding interrogation rooms and producing disposition documents, but the High Prosecutors Office would also be freed from handling re-examinations, releasing manpower back to the grassroots level to resolve the manpower shortages repeatedly raised by prosecutors in their op-eds. Such a reform would merely require altering prosecutors' working methods and amending the Code of Criminal Procedure, avoiding the opprobrium of restricting citizens' right of access to court, and proving superior to staff-expansion plans that fail to present concrete manpower needs yet risk causing organizational bloating and severe financial burdens (some commentators have advocated increasing the number of prosecutors or creating deputy prosecutors). This is true, budget-friendly judicial reform.

※ This article was published on ETtoday on March 16, 2017