The Country's Biggest Court is About to Go Live!

Today (Dec. 4), the Legislative Yuan completed the party caucus consultations for the "Grand Chamber system" (Court Organization Act, Administrative Court Organization Act), and it is very likely to pass its third reading in this legislative session. Once effective, the long-criticized system of precedents and resolutions will officially become a thing of the past!! In the future, Grand Chambers established within the Supreme Court and the Supreme Administrative Court will be responsible for unifying legal opinions.

The Grand Chamber system was created to resolve public distrust in the judicial system. It is often said that court opinions change day by day, making going to court feel like gambling and casting public doubt on the credibility of judgments. The most frequently discussed example is probably the "substantial influence doctrine" encountered by former President Ch'en Shui-bian in the Lungtan case. In the past, the Supreme Court's opinion consistently adopted the statutory powers doctrine, meaning that a defendant's act of taking bribes must fall within the scope of the defendant's legal duties. For example, if a civil servant accepted money and helped the briber handle matters within the scope of their own duties, that falls within the defensive perimeter of the statutory powers doctrine. The substantial influence doctrine, on the other hand, does not discuss whether your actions fall within the scope of your duties; instead, judges determine whether the matter was "pulled off" because of your substantial influence. Although both opinions have been adopted by some, they obviously lead to different results because judges adopt different methods of interpretation.

This legislative amendment aims precisely to resolve the uncertainty brought by divergent opinions. Civil, Criminal, and Administrative Grand Chambers will be established in the Supreme Court and the Supreme Administrative Court to resolve inconsistencies in legal opinions among the various divisions of the courts of final instance. When a legal issue involved in a specific case is such that the opinion of the division handling the case differs from that of other divisions in the past, that division should submit a proposal to the Grand Chamber for adjudication.

Below are three key highlights of this legislative amendment:

1. Number of Grand Chamber Judges and Selection Method (Draft Article 51-6)

   Each Grand Chamber is composed of 11 judges, who are "mutually elected" by the judges of the Supreme Court and the Supreme Administrative Court, with a guarantee that at least 1 judge from each division becomes a member of the Grand Chamber. To prevent everyone elected from merely being division chiefs, it is also stipulated that division chiefs shall not exceed one-half of the Grand Chamber members.

   JRF Review

   There are two reasons for preventing mutual elections from resulting entirely in the selection of division chiefs: first, if division chiefs are exclusively elected, the Grand Chamber would be no different from the past resolution system where only division chiefs attend—it would simply be old wine in a new bottle. Second, although division chiefs are senior, their legal opinions are not necessarily the most appropriate. We believe that judges serving as Grand Chamber members must be capable of rendering good judgments so that the legal opinions unified by the Grand Chamber will be sound ones. The draft adopts a method where judges mutually elect Grand Chamber members, but in reality, judges hardly have the time to read all the judgments written by every other judge before voting; therefore, the mutual election mechanism cannot guarantee the selection of judges who author good judgments.

   We advocate that Grand Chamber members should be selected through a vetting process, where candidates are nominated by the Presidents of the Judicial Yuan, the Supreme Court, and the Supreme Administrative Court, and then reviewed and selected by a vetting committee that examines the past judgments and journal articles written by the nominees. This is more likely to select suitable judges. Unfortunately, this approach was not adopted, and the original plan of mutual election by Supreme Court and Supreme Administrative Court judges was maintained.

2. The Grand Chamber Adopts a "Two-Stage Review"

   The so-called two-stage review Grand Chamber means that the proposing division submits the disputed legal opinion to the Grand Chamber. After the Grand Chamber renders a ruling to unify the opinion, this opinion must return once more to the proposing division, which then applies the legal opinion to the facts of the specific case to render a judgment that complies with the Grand Chamber's legal opinion.

   Aside from the two-stage review, there is also advocacy for a "one-stage review," meaning that after the proposing division raises the disputed legal issue, the Grand Chamber directly expresses the unified legal opinion and renders the final judgment. The difference from the two-stage approach is the omission of the subsequent return to the proposing division, which simplifies the process and reduces public suspicion to a certain extent.

3. Grand Chamber's Interlocutory Ruling Replaces Precedents and Resolutions

   In the future, the Grand Chamber will formulate a unified legal opinion into a ruling. The original proposing division is bound by this and must render a final judgment based on the Grand Chamber's legal opinion. The past system of precedents and resolutions will no longer exist once the Grand Chamber system is implemented.

   Past precedents detached legal opinions from the facts of individual cases and could affect other cases beyond the original one, which drew much criticism. From now on, Grand Chamber rulings explicitly stipulate that they only bind the original proposing division, forcing legal opinions to remain attached to the facts of individual cases. This grants lower court judges greater room to express their own legal opinions across different case facts.

It is worth noting that as a result of the consultations, Paragraph 3 of Article 57-1 of the draft Court Organization Act provides a three-year buffer period after the law takes effect. This allows precedents and resolutions invalidated by the implementation of the Grand Chamber system to be petitioned for constitutional interpretation mutatis mutandis pursuant to Article 5, Paragraph 1, Subparagraph 2 of the Act Governing the Adjudication of Constitutional Cases by the Judicial Yuan, thereby safeguarding the litigation rights of the people. In other words, during this three-year buffer period, people who believe that unconstitutional situations existed in the past due to precedents or resolutions may seek relief from the Constitutional Court. After the three-year buffer period expires, precedents or resolutions can no longer be used as the target of review, thereby upholding legal stability.