Comments on the Amendment to the Enforcement Rules of the Judges Act

Date: April 13, 2020
Document No.: Szu-Gai-Tzu No. 109060
Speed: Urgent

Subject: Comments on the amendment to the Enforcement Rules of the Judges Act, detailed in the explanations below. Your review and response would be appreciated.

Explanations:

1. Pursuant to the Judicial Yuan's Official Document Yuan-Tai-Ting-Szu-I-Tzu No. 1090008607 dated March 31, 2020, our comments on the draft amendment to the Enforcement Rules of the Judges Act are as follows.

2. Article 16, Paragraph 1 of the draft amendment provides: "The term 'crime victim' as referred to in Article 35, Paragraph 1, Subparagraph 4 of the Act means a person who is directly harmed by a crime." However, Article 233 of the Code of Criminal Procedure provides: "The statutory agent or spouse of a victim may independently file a complaint. If the victim is deceased, the complaint may be filed by their spouse, lineal blood relatives, collateral blood relatives within the third degree of kinship, relatives by marriage within the second degree, or head or members of the household. However, in respect of a complaint-dependent offense, the filing shall not be contrary to the explicit intention of the victim." Article 235 provides: "Where the statutory agent of a victim is the defendant, or where the spouse of the statutory agent, blood relatives within the fourth degree of kinship, relatives by marriage within the third degree, or head or members of the household of the statutory agent is the defendant, the victim's lineal blood relatives, collateral blood relatives within the third degree of kinship, relatives by marriage within the second degree, or head or members of the household may independently file a complaint." In addition, Chapter 7-3 of the Code of Criminal Procedure, "Participation in Criminal Proceedings by Victims," was promulgated and entered into force on January 8, 2020. Article 455-38, Paragraph 2 of the Code provides: "Where the victims of the offenses in the preceding paragraphs lack legal capacity, have restricted legal capacity, are deceased, or are unable to apply due to other unavoidable reasons, their statutory agent, spouse, lineal blood relatives, collateral blood relatives within the third degree of kinship, relatives by marriage within the second degree, or head or members of the household may act on their behalf." Those mentioned above who are entitled to file a complaint and participate in criminal proceedings are all crime victims in a broad sense.

   In view of this, the crime victims referred to in Article 35, Paragraph 1 of the Judges Act should align with the provisions of the relevant articles of the Code of Criminal Procedure, and their scope should not be overly narrow. Therefore, this Foundation suggests that the text of Article 16, Paragraph 1 of the draft amendment be revised as follows:

   "The term 'crime victim' as referred to in Article 35, Paragraph 1, Subparagraph 4 of the Act means a person directly harmed by a crime, as well as persons entitled to file a complaint, independently file a complaint, or apply to participate in proceedings pursuant to the Code of Criminal Procedure."

3. Article 24 of the draft amendment provides: "The number of lay assessors appointed pursuant to Article 48, Paragraph 5 of the Act shall be determined by the Judicial Yuan in consideration of practical needs. After the lay assessors are appointed, the Judicial Yuan shall compile a roster of lay assessors. When the first-instance collegial panel of the Disciplinary Court tries disciplinary cases, it shall select two lay assessors by drawing lots from the roster mentioned in the preceding paragraph to serve as members of the collegial panel. The drawing of lots in the preceding paragraph shall comply with the principle of fairness, and its method shall be determined by the meeting of the judges of the Disciplinary Court." However, Article 48, Paragraph 4 of the Judges Act explicitly stipulates: "The lay assessors of the proviso of Paragraph 1 shall be selected from scholars and socially impartial individuals by the Judges Selection Committee of the Judicial Yuan, and submitted to the President of the Judicial Yuan for appointment, with a three-year term and no reappointment. Their number may be increased depending on operational needs." At least 6 lay assessors should be selected, and there is no restriction on the professional backgrounds of the lay assessors. To guarantee a sufficient number of lay assessors and prevent the malpractice of legal professionals shielding one another, this Foundation suggests that the text of Article 24 of the draft amendment be revised as follows:

   "The number of lay assessors appointed pursuant to Article 48, Paragraph 5 of the Act shall be maintained at six or more, among whom half or more than half of the lay assessors shall be non-lawyers. If a lay assessor resigns or is unable to perform their duties, the Judicial Yuan shall immediately select and appoint a replacement. If operational needs increase, the Judicial Yuan may increase the number of lay assessors.

   After the lay assessors are appointed, the Judicial Yuan shall compile a roster of lay assessors.

   When the first-instance collegial panel of the Disciplinary Court tries disciplinary cases, it shall select two lay assessors by drawing lots from the roster mentioned in the preceding paragraph to serve as members of the collegial panel.

   The drawing of lots in the preceding paragraph shall comply with the principle of fairness, half or more than half of the lay assessors shall be non-lawyers, and its method shall be determined by the meeting of the judges of the Disciplinary Court."

4. Our comments on the amendments are as stated above. We respectfully request your adoption and suggest that Your Honor's Court hold a public hearing to widely gather opinions from all sectors, so as to facilitate the promotion of the new Judges Act.