Shih Mu-Chin Case | Amicus Curiae Brief (II) for Case No. 109-Cheng-Tzu-9

Case Number: 109-Cheng-Tzu No. 9
Division: Division B
Declarant: Judicial Reform Foundation
Representative: Lin Yung-Sung, Attorney-at-Law

I. Procedural Matters

Article 20, Paragraph 1 of the Constitutional Court Procedure Act, which will take effect on January 4, 2022, introduces an amicus curiae mechanism, providing: "Persons, agencies, or organizations other than the parties to a case before the Constitutional Court who consider themselves to have a nexus with the case may apply to the Constitutional Court for permission to submit professional opinions or other materials of reference value within a prescribed period for the Court's consideration." The relevant "nexus" may be emotional or professional and is not limited to a legal interest.

Although the current Judges Act and other procedural laws do not expressly provide for an amicus curiae mechanism, allowing such submissions by analogy can help the court consider views from different sectors of society and avoid decisions becoming disconnected from social reality. The Judicial Reform Foundation (JRF) is not a party to this case, but its mission is to mobilize civil society to promote judicial reform through legislative research, monitoring and evaluation, case tracking, and public education. This case is a major and highly publicized judicial-integrity matter, and the JRF, as a civil society organization that monitors judicial misconduct, has held multiple press conferences concerning the subsequent investigation.

In summary, the JRF should be deemed qualified as an "amicus curiae." If the Disciplinary Chamber still considers that there is no legal basis to rule and permit the statement of opinions by an "amicus curiae," it may actually also be handled appropriately as a "citizens' petition." Other individuals, agencies, or organizations who agree that the Shih case should be tried publicly may naturally also file briefs to express their opinions to the Disciplinary Chamber.

II. The JRF's Legal Opinions on Your Honorable Court's 109-Nien-Cheng-Tzu No. 9 Case

1. This case should not be dismissed on the ground that the period for exercising disciplinary authority has expired; the relevant provisions of the Judges Act apply.

(1) Under Article 25, Subparagraph 3 of the former Public Functionaries Discipline Act, before its May 2016 amendment took effect, a disciplinary case was to be dismissed if "10 years have elapsed from the completion of the unlawful or derelict conduct to the referral of the case to the Public Functionary Disciplinary Sanction Commission" (now reorganized as the Disciplinary Court). The purpose was to prevent uncertainty over disciplinary liability from continuing indefinitely and, after a substantial period, to bar further exercise of disciplinary authority in order to protect public functionaries' rights and preserve stability in the legal order. However, applying the same 10-year period to every form of discipline, without differentiating according to the nature of the misconduct or severity of the sanction, was inconsistent with proportionality, as the Judicial Yuan's Interpretation No. 583 explained. The Legislature therefore enacted the current Article 20, Paragraphs 1 and 2, which provide different periods according to the severity of the contemplated disciplinary sanction. For public functionaries whose misconduct warrants severe sanctions such as "dismissal from office" or "removal from office," continued service is no longer appropriate. Drawing on Article 15 of Germany's Federal Disciplinary Act (Bundesdisziplinargesetz), the Legislature therefore imposed no time limit for such disciplinary sanctions, avoiding a situation in which the passage of too much time before a case becomes pending before the Public Functionary Disciplinary Sanction Commission would make it impossible to discipline and remove an unfit public functionary.

(2) According to a Central News Agency report on June 16, 2021, the respondent Shih Mu-Chin argued that this case should be subject to the 10-year disciplinary statute of limitations and that this case should not be accepted procedurally. However, upon examination, Article 20 of the current Public Functionaries Discipline Act, compared to Article 25, Subparagraph 3 of the old Act where the disciplinary statute of limitations was uniformly 10 years, requires determining which is more favorable to the respondent based on the type of discipline, in order to decide whether the new or old Act applies. In this regard, when the respondent Shih Mu-Chin served as the President of the Public Functionary Disciplinary Sanction Commission and the Presiding Judge of the First Chamber, he adjudicated public functionary illegal and derelict cases including 107-Nien-Ch'ing-Tzu No. 13177, 107-Nien-Ch'eng-Tzu No. 3529, 108-Nien-Ch'ing-Tzu No. 13203, and 108-Nien-Ch'ing-Tzu No. 13226, wherein he consistently stated that "although the derelict acts occurred before the amendment and implementation of the Public Functionaries Discipline Act, since the cases became pending before the Public Functionary Disciplinary Sanction Commission after the amendment and implementation, the newly amended Public Functionaries Discipline Act shall apply." The reasons given were: for cases where the derelict acts occurred before the implementation of the amendments and became pending before the Public Functionary Disciplinary Sanction Commission only after the implementation of the new law, there is no provision equivalent to Article 2 of the Criminal Code concerning how to apply laws when the law changes after the commission of an act; therefore, the new law at the time the case becomes pending before the Public Functionary Disciplinary Sanction Commission must be applied in order to achieve the purpose of constructing and establishing the public functionary disciplinary system and to manifest its functions.

(3) From this context, it can be seen that the Judges Act was implemented in July 2012. Although the derelict acts of the respondent judges and others occurred before the implementation of the Act, if they became pending before the Disciplinary Court after its implementation, the relevant provisions of the Judges Act shall still apply, rather than the provisions of the old Public Functionaries Discipline Act at the time of the acts. Although the main text of Article 52, Paragraph 1 of the Judges Act stipulates that "reduction of retirement pensions and severance pay," "fine," and "reprimand" are subject to a 5-year disciplinary period restriction; however, if judges are subject to disciplinary sanctions such as "dismissal from the office of judge and prohibition from being reappointed as a public functionary," "removal from office," "dismissal from the office of judge and transfer to non-judge positions," or "deprivation of retirement pensions and severance pay or deprivation of severance pay," the circumstances of their dereliction are serious and they are no longer fit to serve as judges. Thus, they are not subject to the restriction of the disciplinary period and substantive review shall be conducted. This case shall not be dismissed on the grounds that the period for exercising disciplinary power has expired.

(4) Furthermore, the acts subject to discipline in this case also include criminal facts currently under criminal investigation (detailed below); thus, it is also doubtful whether the respondent's acts exceeded the period for exercising disciplinary power under the old law, and the case cannot be dismissed on this ground.

2. The acts subject to discipline in this case include criminal facts currently under criminal investigation. To avoid repetitive evaluation of disciplinary liability or the issuance of a dismissal judgment, it is necessary to suspend the trial proceedings in this case.

(1) Pursuant to Article 20 of the Rules of Adjudication for Disciplinary Cases in the Disciplinary Chamber: "Where the same act is under criminal investigation or trial, the trial proceedings shall not be suspended. However, if the act subject to discipline depends on whether a crime is established, and the Disciplinary Chamber deems it necessary, it may rule to suspend the trial proceedings prior to the first-instance criminal judgment. The ruling to suspend the trial proceedings in the preceding paragraph may be revoked by the Disciplinary Chamber upon a party's motion or ex officio." From this, it is known that the suspension of trial proceedings is a matter for the Disciplinary Chamber to consider ex officio.

(2) As for the circumstances under which the Disciplinary Chamber deems it necessary to suspend trial proceedings, according to the Disciplinary Court's judgments in 109-Nien-Cheng-Tsai No. 2, 109-Nien-Cheng-Tzu No. 6, and 108-Nien-Cheng-Tzu No. 2, the "principle of unified evaluation of misconduct" seeks, insofar as possible, to have all misconduct by the same judge or prosecutor evaluated for disciplinary responsibility at one time and in a single disciplinary proceeding. Where a prior disciplinary action has already been initiated and later misconduct cannot be consolidated into it, the question is whether the conduct in the earlier and later matters lacks an internal connection and is independently assessable (for example, absenteeism as opposed to corruption). If so, disciplinary authority is not exhausted and a later proceeding may still be initiated. The later proceeding must nevertheless respect the principle of unified evaluation of misconduct, so that the combined disciplinary consequences are not more unfavorable than the overall disciplinary assessment that would have resulted had all misconduct been addressed together in a single proceeding. Accordingly, under the principle of unified evaluation of misconduct, the same act of judicial misconduct may not be referred repeatedly in disciplinary proceedings in a manner that exposes the judge to double jeopardy. This remains true whether or not the Court permits consolidation by the referring authority and likewise applies where the same judge is the subject of multiple referrals. From this, it can be seen that the disciplinary procedure should not be fragmented to handle the derelict responsibility of the same respondent multiple times. Conversely, if one encounters a situation where the referral facts for the same respondent are not yet complete-for example, some facts are still under investigation, or some facts involving other personnel have not yet been referred-this is precisely the situation that should be handled using the proviso of Article 20 of the Rules of Adjudication for Disciplinary Cases in the Disciplinary Chamber, so as to prevent the respondent from being subjected to multiple disciplinary referrals and placed at risk of double jeopardy.

(3) Article 49, Paragraph 4 of the Judges Act provides that discipline may still be imposed even where the same act has already resulted in criminal punishment or an administrative penalty, or where the act is not subject to such punishment or penalty; however, discipline need not be imposed again if the circumstances are minor and doing so would be manifestly unfair. Paragraph 5 further provides that a disciplinary case shall be dismissed in specified circumstances, including where a judgment depriving the judge of civil rights has become final and no further discipline is considered necessary. Thus, if the respondent is ultimately deprived of civil rights by a final criminal judgment, that may constitute a ground for dismissal of the disciplinary case. Accordingly, where the facts underlying the disciplinary case include matters still under criminal investigation and a final criminal judgment could result in dismissal of the disciplinary proceeding because of deprivation of civil rights, the Disciplinary Chamber should not rush to trial and judgment before the related criminal cases become final.

(4) Upon examining the Control Yuan's investigation report, whether the respondent's purchase of stocks involved the payment of money, whether it constituted consideration, or whether it constituted corruption in violation of official duties have all not yet concluded investigation. Thus, it is apparent that there are numerous facts subject to discipline and their times of occurrence that Your Honorable Court needs to clarify:

1. According to page 115 and following of Control Yuan Investigation Report 109-Szu-Tiao-0069 (hereinafter referred to as the "Control Yuan Investigation Report") (bold and underlined text added by the declarant):

"(4) Shih Mu-Chin improperly purchased shares of RF-Link System Inc. (怡安公司), controlled and operated by Weng Mao-Chung (翁茂鍾), during the trial periods of related civil and criminal litigation cases involving Weng Mao-Chung, and subsequently sold them for profit, involving illegality: ......

(2) According to the statements made by Shih Mu-Chin during his interview with the Judicial Yuan's Department of Government Ethics and analysis of the aforementioned materials: Shih Mu-Chin first admitted to investing in stocks of unlisted companies, stating that he counted on them being listed on the OTC market in the future, and Weng Mao-Chung should have told him in advance that RF-Link System Inc.'s stocks were going to be OTC-listed, which is why he invested (Interrogation Record, p. 23). He subsequently denied contacting Weng Mao-Chung and denied that Weng Mao-Chung told him the news that RF-Link System Inc. was going to be OTC-listed (Interrogation Record, p. 24). He also stated: 'Regarding the sale of stocks, I am not clear about it; it was sold by my wife Wu ○○. The proceeds are in my wife's account. She should have sold the stocks tranche by tranche, and did not discuss it with me before selling; she told me only after the sale was completed' (Interrogation Record, p. 24). However, because this notebook is evidence searched and seized by the Taipei District Prosecutors Office in accordance with the law and is an item held by Weng Mao-Chung, the possibility of forgery or frame-up by others can be eliminated. Furthermore, Weng Mao-Chung admitted during the prosecutor's interrogation that the notes were in his handwriting, meaning they were all personally produced by the maker in name. In addition, by comparing with the perpetual calendar, the dates and days of the week in the notebook-such as dates and days of the week-all match, and the restaurants and cafes recorded as places for banquets and meetings were indeed open for business at that time, which is sufficient to establish the authenticity of the records.

(3) Shih Mu-Chin had banquets together with Weng Mao-Chung and the litigation agent retained by him, Attorney Yang Yung-Cheng (楊永成), at Lai Lai Momoyama Japanese Restaurant on July 22, 1997, and February 13, 1998, before Wu ○○ purchased RF-Link System Inc.'s stocks this time, and on November 5, 1998, and October 4, 1999, after purchasing the stocks, as recorded in the aforementioned notebook, to discuss and confirm the litigation case concerning the non-existence of promissory note debt. In summary, there is sufficient corroborating evidence to corroborate or support the authenticity of the records in the notebook; hence, Shih Mu-Chin's denial of Weng Mao-Chung's statement telling him that RF-Link System Inc.'s stocks were going to be OTC-listed is untrustworthy.

(4) Moreover, when Shih Mu-Chin accepted an interview by the Judicial Yuan's Department of Government Ethics on September 10, 2019, he argued that because it was a gift and his son had already reached the age of 20, there was no need to declare property, etc. Furthermore, according to another statement by Shih Mu-Chin during his interview with the Judicial Yuan, stock trading was all handled by my wife... the children all authorized my wife to place orders for them (Interrogation Record, p. 2). From this, it can be seen that regarding the purchase and sale of RF-Link System Inc.'s stocks by his son Shih ○-han (石○涵), it was substantially still controlled by Shih Mu-Chin and his wife.

(5) In addition, according to the items seized during the search of Weng Mao-Chung by the Taipei District Prosecutors Office on October 26, 2018, namely Seized Article No. B2 (24 slips of paper) and remittance slips, the recorded matters are extremely clear. RF-Link System Inc.'s stocks were indeed personally negotiated and sold by Weng Mao-Chung to Shih Mu-Chin and other judicial, prosecutorial, investigative, and police personnel (many of whom were involved in the investigation, probing, and trial of the Paris Bank case), as detailed in the figure below.

(Photo 1: List of Weng Mao-Chung writing down the 1st purchase of RF-Link System stocks)

(6) As shown in the figure below, Shih Mu-Chin and well-known high-ranking personnel of the prosecution, police, and investigation authorities did indeed remit money to purchase RF-Link System stocks, and unexpectedly there are the following 5 suspicious "Chinatrust Commercial Bank remittance receipts," which, although belonging to 5 different remitters, have the same date, and the handwriting, judged by visual inspection, is also completely identical.

(Photo 2: Remittance in the name of Huang ○○, sister-in-law of Chief Prosecutor Wang Chung-Yi (王崇儀) of the Yilan District Prosecutors Office, on October 6, 1998)

(Photo 3: Remittance in the name of Shih Mu-Chin's wife on October 6, 1998)

(Photo 4: Remittance by Chin Tai-Sheng (秦台生) in the name of Chung ○○ on October 6, 1998)

(Photo 5: Remittance by Liu Po-Liang (劉柏良) on October 6, 1998)

(Photo 6: Remittance in the name of Ling ○○, wife of Chief Prosecutor Fang Wan-Fu (方萬富) of the Tainan District Prosecutors Office, on October 6, 1998)

3. After the Judicial Yuan's Department of Government Ethics inquired about Shih Mu-Chin's interview statements and compared them with the aforementioned materials, the Control Yuan considered that Shih Mu-Chin's statements-such as: 'Weng Mao-Chung did not tell us the news that RF-Link System Inc. was going to be sold to Neng Lyu Co. of the Abico Group; it has been too long until now, and I don't remember clearly about the matter in July 2003. I don't know why Weng Mao-Chung's notebook recorded it this way; it should not have happened... I simply did not know this news, and I did not learn the news from Weng Mao-Chung in advance' (Interrogation Record, pp. 25-26)-are untrustworthy. Upon examination, the notebook is evidence searched and seized by the Taipei District Prosecutors Office in accordance with the law and is an item held by Weng Mao-Chung, so the possibility of forgery or frame-up by others can be eliminated. Furthermore, Weng Mao-Chung admitted during the prosecutor's interrogation that the notes were in his handwriting, meaning they were all personally produced by the maker in name. In addition, by comparing with the perpetual calendar, the dates and days of the week in the notebook-such as dates and days of the week-all match, and the restaurants and cafes recorded as places for banquets and meetings were indeed open for business at that time, which is sufficient to establish the authenticity of the records. 4. Shih Mu-Chin's claims that too much time has passed and he cannot recall, or his denial of banquets or golf games with Weng Mao-Chung and lawyers of litigation parties, without presenting favorable evidence for investigation and recognition, are deemed untrustworthy by the Control Yuan for the aforementioned reasons. Comparing this with the seized notebook numbered A21, on the day Wu ○○ and Shih ○-han purchased RF-Link System Inc.'s stocks or a few days prior, Shih Mu-Chin had met with Weng Mao-Chung on each occasion. Moreover, Weng Mao-Chung explicitly recorded in the seized notebook numbered A21 under the date of July 22, 2003: 'Visited Shih Mu-Chin regarding RF-Link System matters,' which seems to be related to consultations and discussions with Shih Mu-Chin concerning RF-Link System Inc., because on the following day (the 23rd), Wu ○○ bought 57 lots (57,000 shares) of RF-Link System Inc. stock in one go. Viewed from this perspective, the purchase of RF-Link System Inc.'s stocks by Wu ○○ and Shih ○-han this time might well be because Shih Mu-Chin learned in advance from Weng Mao-Chung the favorable news that RF-Link System Inc. would introduce other major shareholders and that control of the business was about to change hands, and only then proceeded to buy them."

2. Furthermore, according to page 124 and following of the Control Yuan Investigation Report (bold and underlined text added by the declarant):

"(5) Shih Mu-Chin, during the trial periods of related civil and criminal litigation cases involving Weng Mao-Chung, improperly purchased 100 lots (100,000 shares) of LandMark Optoelectronics Corporation (聯亞公司) (located at No. 9, Nankē 9th Road, Shanhua District, Tainan City), controlled and operated by Weng Mao-Chung, in June 2008 in the name of his son Shih ○-han, and subsequently sold them for a profit at prices exceeding NT$300 per share after LandMark Optoelectronics Corporation's stocks were listed on the Emerging Stock Market on July 15, 2014:

2. The Control Yuan's determination: (1) Shih Mu-Chin argued: regarding the LandMark Optoelectronics Corporation stocks in Shih ○-han's name, he first claimed they were purchased as a gift and given to Shih ○-han, then claimed they were the repayment of a loan for Shih ○-han to purchase independently, and finally claimed entrusted trading-these three different statements all deemed the property to belong to the donee Shih ○-han, and at that time Shih ○-han was already an adult and had no need to declare it, etc. The Control Yuan considers that even if Shih Mu-Chin's claims are fully adopted-namely: 1. "gift"; 2. "brotherly loan + gift"; 3. "brotherly loan + entrusted trading"-requiring no declaration, the stock trading accounts of Shih ○-han were still under the substantial control and holding of Shih Mu-Chin, and his trading of LandMark Optoelectronics Corporation stocks in the capacity of a Supreme Court judge remained improper... (2) In the second column, namely the "held shares" column, of rows 1 to 10 of the "Table of Facts of Shih Mu-Chin's Violation of the Act on Property Declaration by Public Functionaries" referred by the Judicial Yuan, which shows the LandMark Optoelectronics Corporation stocks in the name of his second son Shih ○-han (with a face value of NT$1 million or more), the trading process was entirely conducted by Shih Mu-Chin or his wife, and Shih ○-han did not actually operate the trading of LandMark Optoelectronics Corporation stocks...

3. In summary, since the acquisition of the 100 lots (100,000 shares) of LandMark Optoelectronics Corporation stock in Shih ○-han's Central Depository & Clearing Corporation (集保) account was personally negotiated by Shih Mu-Chin with Weng Mao-Chung when LandMark Optoelectronics Corporation was not yet publicly listed, and then his wife Wu ○○ remitted NT$1.2 million through the account she controlled and used in Shih ○-han's name to the account designated by Weng Mao-Chung for the purchase; subsequently, after selling the LandMark Optoelectronics Corporation stocks using the stock settlement account in Shih ○-han's name controlled and used by him, the proceeds from the sale of stocks did not flow into other accounts substantially used by Shih ○-han, but instead flowed into the bank accounts in the names of Shih Mu-Chin and Wu ○○. It is evident that the NT$1.2 million for purchasing the LandMark Optoelectronics Corporation stocks, the subsequent stock trading proceeds, and all LandMark Optoelectronics Corporation stocks in Shih ○-han's Central Depository account were all held and managed by Shih Mu-Chin. Even if Shih Mu-Chin's defense is adopted-that 1. the LandMark Optoelectronics Corporation stocks and profits were gifts; 2. "brotherly loan + gift"; 3. "brotherly loan + entrusted trading"-thus evading provisions such as Article 2, Paragraph 1, Subparagraph 10, Article 4, Subparagraph 1, Article 5, Paragraph 1, Subparagraph 2 of the Act on Property Declaration by Public Functionaries, and Article 14, Paragraphs 1 and 3 of its Enforcement Rules, regarding "intentionally concealing property and illegally failing to faithfully declare it when declaring property," this still cannot absolve Shih Mu-Chin of the fact that he actually purchased and sold LandMark Optoelectronics Corporation stocks by holding his son Shih ○-han's account, which clearly violates Article 18, Paragraph 1 of the Judges Act ("A judge shall not engage in acts that impair the dignity of their position or trust in their office") and Article 5 of the Code of Judicial Ethics ("A judge shall maintain noble character, be cautious in speech and conduct, uphold integrity, and avoid improper acts or acts easily perceived as impairing the judicial image")."

3. In summary, whether the respondent's aforementioned stock purchase acts during the period of trying cases involved the payment of money, whether they constituted consideration, or whether they constituted corruption crimes in violation of official duties-if so, they may involve criminal corruption crimes, but currently the results of the investigation have not yet been seen. Therefore, whether the aforementioned crimes are established affects the determination of the facts subject to discipline, and it is necessary to examine them together.

4. Furthermore, the derelict facts of other judicial personnel who had banquets together with the respondent are inextricably linked to the facts of this case. Whether this part constitutes a violation of official duties and whether other persons are accomplices of the respondent have not yet concluded investigation, nor have they been referred to Your Honorable Court by the Control Yuan:

(1) According to the Judicial Yuan Personnel Review Committee press release of January 28, 2021: "Former President of the Supreme Administrative Court Lin Chi-Fu (林奇福), former Supreme Court judge and presiding judge Yen Nan-Chuan (顏南全), and former Taiwan Tainan District Court judge Su Yi-Chou (蘇義洲)-all three of whom are judges who previously tried litigation cases involving Weng Mao-Chung or his operated companies-had improper interactions with Weng Mao-Chung, and the circumstances of their derelict acts were grave; former Taiwan High Court Tainan Branch Court judge Tseng Ping-Shan (曾平杉), former Taiwan High Court Tainan Branch Court judge Chen I-Chung (陳義仲), and former Taiwan High Court Tainan Branch Court judge and presiding judge Lin Chin-Tsun (林金村)-though not the judges handling the litigation cases involving Weng Mao-Chung and his operated companies-had numerous improper interactions with Weng Mao-Chung, and the circumstances of their derelict acts were grave. All of the above 6 persons need to be disciplined and are directly referred to the Control Yuan for review pursuant to the provisions of Article 51 of the Judges Act." That is to say, the aforementioned judicial personnel also run the risk of engaging in improper acts.

(2) Comparing the aforementioned referral targets with the Control Yuan Investigation Report reveals that they have an inextricably linked correlation with the respondent of this case in the determination of case facts. Either they were mediated by the respondent back and forth to have banquets with Weng Mao-Chung, or they had banquets at the same table with Weng Mao-Chung and the respondent at the same time. If handled in a fragmented manner, it will hinder the discovery of the truth and may also cause repetitive evaluation of prior and subsequent derelict acts:

• For example, regarding Lin Chi-Fu: "During the trial period of Supreme Court 90-Nien-T'ai-Chien-Shang-Tzu No. 33, a third-instance civil litigation case concerning the non-existence of promissory note debt in the Paris Bank case, the assigned judge was Yang Ting-Chang (楊鼎章). The case was received on May 2, 2001, deliberated and closed on November 1, 2001. The presiding judge was Presiding Judge Lin Chi-Fu, who later served as the President of the Supreme Administrative Court. On May 30, 2001 (Wednesday) at 11:40, at the Bear Two Restaurant, Shih Mu-Chin and Judge Yen Nan-Chuan informed Weng Mao-Chung that the Paris Bank case would be relegated to the back of the queue for rescheduling...... At 15:00 on the same day, based on the information informed by Shih Mu-Chin and Judge Yen Nan-Chuan in the morning, Weng Mao-Chung immediately visited Presiding Judge Lin Chi-Fu of the Supreme Court handling the case...... On June 2, 2001 (Saturday), Weng Mao-Chung and Shih Mu-Chin met alone at Euler Cafe...... 2 days later, at 16:00, he visited Presiding Judge Lin Chi-Fu of the Supreme Court handling the case for the second time...... Another 2 days later, on June 6, 2001 (Wednesday) at 12:10, at Mitsui Restaurant, he hosted a banquet for Shih Mu-Chin......" (Investigation Report, p. 31 and following)
• For example, regarding Yen Nan-Chuan: "During the trial period of Supreme Court 90-Nien-T'ai-Chien-Shang-Tzu No. 33, a third-instance civil litigation case concerning the non-existence of promissory note debt in the Paris Bank case, on May 30, 2001 (Wednesday) at 11:40, at the Bear Two Restaurant, Shih Mu-Chin and Judge Yen Nan-Chuan informed Weng Mao-Chung that the Paris Bank case would be relegated to the back of the queue for rescheduling...... At 15:00 on the same day, based on the information informed by Shih Mu-Chin and Judge Yen Nan-Chuan in the morning, Weng Mao-Chung immediately visited Presiding Judge Lin Chi-Fu of the Supreme Court handling the case" (Investigation Report, p. 31 and following). "Chu Ching-En's (諸慶恩) case of violating the Business Accounting Act appealed to the Supreme Court, bearing the case number Supreme Court 92-Nien-T'ai-Shang-Tzu No. 4411, assigned to Supreme Court Judge Chang Ching-Pi (張清埤), received on June 20, 2002, deliberated and closed on August 14, 2003. The primary judge was Presiding Judge Wu Hsiung-Ming (吳雄銘) of the Sixth Criminal Chamber, and the designated reporting judge was Judge Chih Chi-Ming (池啟明), with Shih Mu-Chin serving as the associate judge. Meanwhile, the incidental civil litigation was pending under Supreme Court 93-Nien-T'ai-Shang-Tzu No. 2143 (the Supreme Court's trial of Wah Bien Corporation's [怡華公司] dismissed appeal against Paris Bank, Chu ○○, and Chu ○○), which was handled by the Third Civil Chamber of the Supreme Court, with Presiding Judge Chu Chin-Chuan (朱錦娟), designated reporting judge Hsu Shu-Lin (許澍林), and associate judges Yen Nan-Chuan, Yeh Sheng-Li (葉勝利), and Liu Fu-Sheng (劉福聲)...... On August 9, 2002 (Friday) at 19:00, Weng Mao-Chung hosted a banquet at Tainan Kanda Restaurant for Shih Mu-Chin, Supreme Court Judge Hsieh Chia-Ho (謝家鶴), Judge Liu Chieh-Min (劉介民), Judge Hua Man-Tang (花滿堂), Judge Yen Nan-Chuan, Judge Hung Chia-Pin (洪佳濱), and others...... On November 1, 2003 (Saturday) at 12:30, Weng Mao-Chung and Shih Mu-Chin played golf together at Chianan Golf Course, and at 18:30 in the evening, Weng Mao-Chung hosted a banquet at Kanda Restaurant for Shih Mu-Chin, Supreme Court Judge Hsieh Chia-Ho, Judge Yen Nan-Chuan, Judge Hung Chia-Pin, Judge Hua Man-Tang, and others; on November 2, 2003 (Sunday) at 7:30, Weng Mao-Chung played golf with Shih Mu-Chin at Nanyi Golf Course, and at 12:30, Man-fu Mutton again hosted a banquet for the golf participants (namely Supreme Court Judge Shih Mu-Chin, Judge Hsieh Chia-Ho, Judge Yen Nan-Chuan, Judge Hung Chia-Pin, Judge Hua Man-Tang, etc.)......" (Investigation Report, p. 38 and following)
• For example, regarding Tseng Ping-Shan: "Before the Third Chamber of the Civil Division of the Supreme Court deliberated and closed Supreme Court 90-Nien-T'ai-Chien-Shang-Tzu No. 33, a third-instance appeal case concerning the non-existence of promissory note debt, on November 1, 2001, Weng Mao-Chung, besides visiting Shih Mu-Chin and Third Chamber Presiding Judge Lin Chi-Fu...... went to the home of Taiwan High Court Tainan Branch Court judge Tseng Ping-Shan at 21:30 on August 9, 2001 (Thursday)...... On August 10, 2001 (Friday) at 13:40, Weng Mao-Chung hosted a banquet for Shih Mu-Chin at Lai Lai Hotel's Momoyama Restaurant...... On October 5, 2001 (Friday) at 17:00, he met with Shih Mu-Chin again......" (Investigation Report, p. 69 and following)

(5) In summary, some facts of this case are still under investigation, and it is uncertain whether other personnel involved constitute accomplices, and none have been referred yet. Therefore, the trial proceedings should be suspended pursuant to the proviso of Article 20 of the Rules of Adjudication for Disciplinary Cases in the Disciplinary Chamber, so as to prevent the respondent from being subjected to multiple disciplinary referrals and placed at risk of double jeopardy, or to avoid concerns of factual determination contradictions making it impossible to ascertain the truth. Furthermore, since the aforementioned facts subject to discipline have not yet been clarified, it is also difficult to determine that his acts have indeed exceeded the period for exercising disciplinary power pursuant to Article 25, Subparagraph 3 of the old Public Functionaries Discipline Act. Thus, this case cannot be used as the basis for a dismissal judgment, as stated above.

3. However, if Your Honorable Court deems that this case should already be subjected to substantive review, the case still has evidence and records that have not been thoroughly investigated. Your Honorable Court shall ex officio retrieve them and give both parties full opportunity to express their opinions.

(1) Pursuant to Article 23 of the Rules of Adjudication for Disciplinary Cases in the Disciplinary Chamber: "When trying a disciplinary case, the Disciplinary Chamber shall investigate necessary evidence ex officio." Article 24: "When trying a disciplinary case, the Disciplinary Chamber may, when necessary, retrieve case files from relevant agencies, and may request them to provide necessary explanations." Therefore, the scope of the Disciplinary Chamber's evidence investigation and retrieval of case files is not bound by the claims of the parties.

(2) If this case is tried only based on the case files and evidence referred by the Control Yuan without retrieving complete relevant case files and evidence, it will be impossible to comprehensively investigate the full truth. Your Honorable Court shall retrieve complete case files and evidence, conduct thorough investigations, and give both parties the opportunity to express their opinions:

1. According to page 16 of the Control Yuan Investigation Report: "For this investigation, the Control Yuan obtained the investigation files and materials concerning seized property and evidence in Taipei District Prosecutors Office Case Nos. 103-Nien-Ta-Tzu-6578 and 106-Nien-Ta-Tzu-267. The Prosecutors Office, however, stated that it could not provide the investigation files and all seized-property and evidentiary materials in other cases unless the Control Yuan supplied the names of persons under investigation or an ascertainable scope. Such a position is not only legally questionable but may obstruct the exercise of the Control Yuan's investigative authority. Nevertheless, to facilitate the investigation, the Control Yuan obtained files from the Prosecutors Office within a defined scope ..." Page 167 further states that because the Taipei District Prosecutors Office did not provide all information concerning seized items, the Control Yuan could only carefully review the files and evidence referred by the Judicial Yuan and the investigative files and evidence identified in the report, and could therefore investigate only clearly discernible evidence rather than the entire picture. Even this "tip of the iceberg," however, revealed the shocking matter reflected in Weng Mao-Chung's Record of a Hundred Officials, in which political, business, judicial, prosecutorial, and investigative personnel interacted closely. The report therefore called on the Executive Yuan and Judicial Yuan to conduct comprehensive reviews, thoroughly examine the seized materials in the two Taipei District Prosecutors Office cases, and investigate and address in accordance with law any judicial, prosecutorial, investigative, or police personnel who violated the Public Functionary Service Act or applicable ethical rules."

2. In addition, upon examination, the "C01, C02, C03, C04, C05, C06, C07, C08 (notebooks)" mentioned in the Control Yuan Investigation Report as having been retrieved amount to only 8 books, which is also obviously discrepant with the "27 notebooks" handwritten by Weng Mao-Chung regarding his improper banquet deeds reported by Mirror Media (鏡週刊) on January 16, 2021.

3. In summary, due to the limits of inter-agency authority in retrieving data, the Control Yuan was unable to retrieve all case files and evidence related to this case. If this case is tried only based on the case files and evidence referred by the Control Yuan without retrieving complete relevant case files and evidence, it will be impossible to comprehensively investigate the full truth. Your Honorable Court shall retrieve complete case files and evidence, conduct thorough investigations, and give both parties the opportunity to express their opinions.

4. In conclusion, this case should not be dismissed on procedural grounds for expiration of the period for exercising disciplinary authority, and there is a need to stay the proceedings. Even if the Court proceeds to substantive review, it should first obtain the complete relevant case files and evidence, conduct the necessary investigation, and give both parties a full opportunity to present their views, so that the facts can be clarified and an appropriate determination made. We respectfully request the Court's consideration.

February 4, 2021

Declarant: Judicial Reform Foundation
Representative: Lin Yung-Sung, Attorney-at-Law

Attachments

Shih Mu-Chin Case | Amicus Curiae Brief (II) for 109-Cheng-Tzu No. 9 PDF file