Op-Ed | Does Amending the State Compensation Law Threaten Judicial Independence? Judicial Immunity ≠ State Immunity

The State Compensation Law has been in force for 40 years since July 1, 1981. The Executive Yuan recently approved a major draft amendment to the law, and the proposed changes to the conditions for state compensation liability arising from judges and prosecutors have sparked vigorous debate among legal professionals.

State Compensation Liability for Ordinary Public Officials

Article 2, Paragraph 2 of the current State Compensation Law provides: "When a public official, in exercising public authority in the performance of official duties, intentionally or negligently and unlawfully infringes a person's freedom or right, the State shall be liable for compensation. The same applies when a public official neglects to perform official duties, thereby causing damage to a person's freedom or right."

The term "public official" here means a person engaged in public affairs pursuant to law. Judges and prosecutors are also public officials, but because Article 13 of the same law separately governs "state compensation liability for judicial officers," the general rule in Article 2, Paragraph 2 applies to ordinary public officials other than judicial officers.

The reason the "State shall be liable for compensation" is that the State has a greater ability to pay than an individual public official who acted unlawfully. The State first compensates the injured person in place of the official, ensuring that the victim can actually obtain recovery, and may then seek recourse against the official in accordance with law.

Article 2, Paragraph 3 further provides: "In the circumstances described in the preceding paragraph, where the public official acted intentionally or with gross negligence, the authority liable for compensation shall have a right of recourse against that official." Thus, state compensation liability requires "intent" or "negligence," but the State's right of recourse against the official is narrower and may be exercised only where the official acted intentionally or with gross negligence.

State Compensation Liability for Judicial Officers

Article 13 of the current State Compensation Law provides: "Where a public official charged with adjudicative or prosecutorial duties infringes a person's freedom or right in the performance of official duties, this Law shall apply if, in connection with a case in which the official participated in adjudication or prosecution, the official committed an offense in the course of official duties and was convicted by a final judgment."

A "public official charged with adjudicative duties" means a judge, while a "public official charged with prosecutorial duties" means a prosecutor; together they are referred to here as "judicial officers." Compared with the general rule in Article 2, Paragraph 2, Article 13 is a special rule governing the State's liability when judicial officers infringe people's rights. Its requirements are extremely strict: the State is liable only when a judicial officer infringes a person's rights in the performance of official duties, commits an "offense in the course of official duties" in the case handled by that officer-namely the offenses under Articles 124 and 125 of the Criminal Code concerning unlawful adjudication and abuse of prosecutorial authority-and is convicted by a final judgment. In fact, since the State Compensation Law took effect, there appears never to have been a case in which the State incurred liability under Article 13.

Is it constitutional to treat ordinary public officials and judicial officers differently? In J.Y. Interpretation No. 228, issued in 1988, the Grand Justices held that Article 13 of the State Compensation Law was a "special provision adopted in light of the characteristics of adjudicative and prosecutorial duties," fell within the scope of legislative discretion, and did not violate the Constitution.

Because the Grand Justices regarded Article 13 of the State Compensation Law as a matter of "legislative discretion," it follows that the legislature could also choose by majority vote to repeal it. In December 2008, the Democratic Progressive Party proposed abolishing Article 13, establishing a negligence-based compensation regime for judicial personnel, and allowing people whose freedoms or rights were infringed by judicial personnel to seek state compensation.

On August 23, 2019, the Executive Yuan convened a meeting to discuss state compensation liability for judicial officers. Afterward, the Judicial Reform Committee and Administrative Law Committee of the Taipei Bar Association discussed the issue in a joint meeting, and the association's directors and supervisors adopted a resolution submitting proposed amendments to the Executive Yuan. The association argued that Article 13 of the State Compensation Law should be repealed because liability for judicial officers should not be designed differently from liability for ordinary public officials in a way that inadequately protects people's rights. If the concern is to protect room for independent adjudication, the special rule should instead operate in the State's internal recourse relationship with the judicial officer.

The Judicial Yuan and Ministry of Justice have consistently opposed repealing Article 13 of the State Compensation Law, primarily on the ground that doing so would affect judicial independence and interfere with criminal prosecution. In short, abruptly repealing Article 13 would inevitably trigger broad resistance from judges and prosecutors and is plainly not something that could be achieved overnight. As a legislative strategy, a phased or compromise approach may therefore be more appropriate.

Attorney Tang Wen-Chang has proposed a phased approach. In the short term, the requirements concerning "prosecution" and a "final judgment" could be removed, and state compensation liability could be added for violations of the right to a timely trial, bringing Taiwan closer to international trends. In the long term, Article 13 should be repealed and the general rules should apply. Judicial independence could then be protected by defining the conditions for liability through concrete cases.

Attorney Su Yu-Chen has proposed a compromise approach: remove the requirement that the judicial officer have "committed an offense in the course of official duties in a case in which the officer participated in adjudication or prosecution and been convicted by a final judgment," and instead make a final disciplinary sanction of removal from judicial office or dismissal under the Judges Act a prerequisite for state compensation. If a judicial officer, through an act or omission in adjudicating or prosecuting a case, intentionally or with gross negligence infringes a person's rights-including through litigation delay-then a final disciplinary sanction of that kind would establish the official's unlawful dereliction of duty, and the State should provide compensation.

Executive Yuan Draft Amendment

On September 2, 2021, the Executive Yuan approved a draft amendment to the State Compensation Law. The current Article 13 would be moved to Article 5, Paragraph 1 and amended to provide: "Where a judge or prosecutor infringes a person's freedom or right in the performance of adjudicative or prosecutorial duties, the State shall be liable for compensation if, in connection with a case in which the judge or prosecutor participated in adjudication or prosecution, either of the following circumstances exists: 1. The judge or prosecutor committed a criminal offense and was convicted by a final judgment. 2. A disciplinary sanction removing the judge or prosecutor from judicial office or dismissing the judge or prosecutor from office became final." Paragraphs 2 and 3 of the same article would further define the scope of "adjudicative duties" and "prosecutorial duties."

The "state compensation liability of judicial officers" under Article 5, Paragraph 1 of the draft could arise in two circumstances. Item 1 would replace the current requirement of an "offense committed in the course of official duties" with a "criminal offense," apparently extending liability beyond the offenses under Articles 124 and 125 of the Criminal Code concerning unlawful adjudication and abuse of prosecutorial authority to other crimes committed by judicial officers while performing adjudicative or prosecutorial duties, such as public insult or unlawful disclosure of personal data. Item 2 would add cases in which a disciplinary sanction removing the official from judicial office or dismissing the official from office became final. Even if the misconduct does not constitute a crime, its seriousness would justify allowing the injured person to seek compensation.

Reports that the Executive Yuan was driving the amendment caused an uproar among rank-and-file members of the judiciary. Some argued that the amendment could undermine judicial independence, making prosecutors reluctant to investigate or indict cases and judges reluctant to convict or inclined to impose lighter sentences, leading them to respond defensively and perfunctorily and ultimately weakening the judiciary's functions. There were also supportive views. Some argued that misconduct serious enough to result in a judicial officer's removal from judicial office or dismissal necessarily reflects clear bad faith, making the new ground based on a final disciplinary sanction reasonable. Judge Chang Sheng-Hsing likewise considered the proposal supportable because it would implement the constitutional obligation of state compensation to the greatest extent possible while "preserving the functioning of the judiciary." Prosecutor Li Ching-Yi went further, suggesting that the conditions for seeking state compensation under Item 2 be relaxed to include sanctions such as removal from judicial office, deprivation of retirement or pension benefits, and reduction of retirement or pension benefits.