Online Petition | Opposition to the "Code of Civil Procedure" Amendments Infringing on Citizens' Right to Appeal

To promote a pyramid-shaped litigation system, the Judicial Yuan has submitted a draft amendment to the "Code of Civil Procedure" to the Legislative Yuan (1)(2). Among them, the key provisions restricting the right to appeal are as follows:

(1) Deleting Subparagraphs 3 and 6 of Paragraph 1 of Article 447. In the future, the second instance court can no longer allow new allegations or defense methods to be raised on the grounds of "additional means of attack or defense are presented for purposes of supplementing those already presented in the first instance" or "it would be manifestly unfair to prevent the party from presenting such additional means of attack or defense" Furthermore, this provision will take effect immediately upon its third reading and promulgation, without any buffer period!

(2) Amending Paragraph 1 of Article 469-1. In the future, appealing to the third instance on the grounds of "the judgment does not provide reasons or provides contradictory reasons" will require permission from the Supreme Court, and will be limited to cases involving the continued development of the laws, or to ensure coherence of decisions, or when other legal opinions involved are significant in principle. The implementation date of this provision shall be determined separately by the Judicial Yuan.

Currently, the draft amendment concerning Article 447 has entered the party caucus negotiation stage in the Legislative Yuan. Because the Judicial Yuan has listed it as a priority bill, if there are no objections from the ruling and opposition parties, it is bound to pass its third reading this legislative session! According to academic research, 70% of cases in which new allegations or defense methods are permitted in the second instance rely on Article 447, Paragraph 1, Subparagraphs 3 and 6. However, this amendment plans to delete them, posing a major and severe impact on citizens' rights. The National White Paper on Judicial Reform has resolved that the right to appeal can only be restricted when accompanied by appropriate complementary measures for a "solid factual trial." Yet, this amendment clearly runs counter to that resolution. Hasty legislation risks severe consequences infringing upon citizens' right to appeal.

To safeguard citizens' rights of litigation, the petition organizations propose the following three demands:

1. This amendment is of great significance; the Legislative Yuan should hold public hearings on the "Code of Civil Procedure" amendment to listen to opinions from all sectors.
2. Regarding this amendment, we advocate:
   1. Article 447 of the Code of Civil Procedure and other amendments "restricting the right to appeal" should not be processed at this time. They should only be proposed after the "solid factual trial" scheme has been passed, implemented for a considerable period, and evaluated for its effectiveness.
   2. The system of professional commissioners may present ambiguities in practical operations and should be carefully evaluated in comparison with the current system of expert witnesses and potential expert witnesses.
   3. The reinforcement of civil evidence law should be comprehensively reviewed, incorporating issues such as "the investigation procedure for testimony," "the expert witness system," "the efficiency of evidence submission and investigation procedures," and "the boundaries of the court's authority to investigate evidence ex officio" into the scope of amendments.
   4. To align with the reform direction of a solid factual trial, the implementation of the collegiate panel system should be further reinforced and expanded.
   5. If the law "restricts the right to appeal," complementary measures should be taken to relax the threshold for civil retrials to remedy potential miscarriage of justice or wrongful judgments.
   6. If the amendment expands mandatory attorney representation, complementary adjustments should be made to the scope of legal aid to safeguard the litigation rights of citizens who cannot afford attorney fees.
   7. The Judicial Yuan should propose complementary draft amendments for the pyramid-shaped personnel organization, augmenting human resources for the first and second instances while streamlining the personnel quota of the third instance.
3. The partial amendment to the "Code of Civil Procedure" reviewed and finalized by the Legislative Yuan committee on October 18, 2021, must be strictly scrutinized during the party caucus consultation stage and must not be hastily passed.

The above is the text of the petition, with detailed reasoning explained below. We cordially invite the legal community, academia, and groups and citizens concerned with judicial reform to join us.

To date, 5 bar associations and 27 civil organizations have joined the petition to express their concerns regarding the direction of the amendments:

Bar Associations
Keelung Bar Association, Taipei Bar Association, Yunlin Bar Association, Chiayi Bar Association, Yilan Bar Association.

Civil Organizations
Taiwan Association for Human Rights, Taiwan Association for Assuring Jury Trials, Children's Rights Association, Republic of China, Taiwan Forever, Covenants Watch, Environmental Jurists Association, Algal Reefs Public Referendum Promotion Alliance, Taiwan Air Clean Action Network, Anti-Dan-Bei Road Alliance, National Union of Environmental Protection Workers, Environmental Rights Foundation, Garden of Hope Foundation, National Alliance of Taiwan Women's Associations, Taipei Women's Rescue Foundation, Taiwan Labour Front, Association of Work-Injury Victims, Kaohsiung Independent Industrial Union, Chunghwa Telecom Workers Union Kaohsiung Branch, CSBC Corporation, Taiwan Enterprise Union, Association of Work-Injury Victims, Chunghwa Telecom South Branch Enterprise Union, National Federation of Workers' Unions, RCA Care Association, Chung-Kwan Information Inc. Enterprise Union, Taoyuan Local Alliance, Taiwan Youth Foundation, Watchout Taiwan.

 

Detailed Explanation

During the National White Paper on Judicial Reform in 2017, the President once again resolved to transform the current "cylindrical" litigation system into a "pyramid-shaped" one. The so-called "pyramid-shaped litigation system" refers to making the first instance the core of factual adjudication, adopting a "retrospective trial" or "strict review trial system" for the second instance, and adopting a "strict legal review" for the third instance. The advantage of this framework is that the first instance court, being closest in time to the occurrence of the event, can effectively clarify the facts of the case, preventing higher courts from repeatedly investigating facts, which wastes judicial resources, is time-consuming, and yields no results. It can also alleviate issues such as the excessive number of judges in the third instance causing divergent legal interpretations.

Our Foundation has always supported the reform direction of the "pyramid-shaped litigation system," but advocates that it should be promoted steadily and progressively with comprehensive complementary measures. The crucial point is that if the first instance court's fact-finding deviates from the truth, although citizens may seemingly still appeal, because the higher court principles its judgment on the first instance's fact-finding without re-investigating evidence, the chances of the case receiving substantive relief are reduced. Meanwhile, adopting strict reviews for appeals and reducing the caseload might inadvertently uphold wrongful judgments. Therefore, in the absence of proper complementary measures, citizens may suffer harm before reaping any benefits. In summary, any restriction on citizens' right to appeal or the scope of permissible claims must be premised on the improvement of trial quality in lower courts.

Regarding the "pyramid-shaped litigation system," the Judicial Yuan has proposed two parts of draft amendments (1)(2) to the "Code of Civil Procedure", among which the amendment to Article 447 has already entered the party caucus consultation stage. However, upon reviewing the relevant provisions, our Foundation found that the draft not only has limited impact on achieving a solid factual trial, but its provisions restricting citizens' right to appeal are neither objectively mature nor provided with an adequate buffer.

I. Who Bears the Responsibility for Hastily Restricting Citizens' Right to Appeal?

The proposed amendment to Article 447 is shown in the table below, which limits the application of the "exception clauses to preclusion effect" in the second instance. In other words, in the future, citizens will no longer be exceptionally permitted to raise new allegations or defense methods in the second instance on the grounds of "additional means of attack or defense are presented for purposes of supplementing those already presented in the first instance" or "it would be manifestly unfair to prevent the party from presenting such additional means of attack or defense" From the legislative purpose perspective, this is intended to prompt parties to timely submit them in the first instance, avoiding "withholding strategies" that diminish trial efficiency.

Draft Amendment Provision

Current Provision

Article 447 No additional means of attack or defense shall be presented, except in case of any of the following: Such additional means of attack or defense were prevented from being presented as a result of the court of first instance acting in contravention of the laws and regulations; The occurrences giving rise to such additional means of attack or defense took place after the conclusion of oral argument in the court of first instance;  The occurrences giving rise to such additional means of attack or defense are generally known or known to the court in the course of performing its functions, or the court should take evidence on its own initiative with regard to such occurrences; The party was unable to present such additional means of attack or defense due to reasons not imputable to him/her; The party shall make a preliminary showing of the existence of one or more of the circumstance provided in the proviso of the preceding paragraph. The court of second instance shall reject any additional means of attack or defense presented in violation of the provision of the two preceding paragraphs.

Article 447 No additional means of attack or defense shall be presented, except in case of any of the following: Where such additional means of attack or defense were prevented from being presented as a result of the court of first instance acting in contravention of the laws and regulations; Where the occurrences giving rise to such additional means of attack or defense took place after the conclusion of oral argument in the court of first instance; Where additional means of attack or defense are presented for purposes of supplementing those already presented in the first instance; Where the occurrences giving rise to such additional means of attack or defense are generally known or known to the court in the course of performing its functions, or the court should take evidence on its own initiative with regard to such occurrences; Where the party was unable to present such additional means of attack or defense due to reasons not imputable to him/her; Where it would be manifestly unfair to prevent the party from presenting such additional means of attack or defense. The party shall make a preliminary showing of the existence of one or more of the circumstance provided in the proviso of the preceding paragraph. The court of second instance shall reject any additional means of attack or defense presented in violation of the provision of the two preceding paragraphs.

However, in fact, according to past statistical research by scholars on 58 judgments of the Supreme Court regarding the practical application of Article 447, the two deleted provisions together account for about 70% of the cases where new methods were permitted. If deleted rashly, it will severely affect the scope of claims citizens can make in the second instance. Therefore, the premise of the aforementioned amendment must be a solid first instance; otherwise, citizens' litigation rights will be sacrificed. The question is: what is the current quality of first instance adjudication?

The chart below is from the Statistical Annual Report published by the Taiwan High Court in 2020:

Conclusion Status of Civil Appeal Cases Received by High Court and Its Branches

Year Unit: Cases	Total	Withdrawn Appeals	Dismissed Appeals		Revoked Original Judgments		Settlement	Mediation Successful	Other
			Unlawful	Ungrounded	Entirely	Partially
2011	8305	851	145	3830	777	1351	1030	220	101
2012	8784	867	125	4095	821	1619	938	191	128
2013	8513	893	108	3839	741	1561	1043	231	97
2014	8781	938	116	3958	764	1545	1034	340	86
2015	9827	986	132	4388	934	1754	1064	493	76
2016	9858	912	100	4337	953	1856	1035	578	87
2017	9597	926	125	3948	1017	1750	1125	631	75
2018	9986	1002	129	4023	924	1723	1193	920	72
2019	9973	942	175	4055	905	1624	1045	1140	87
2020	10272	982	149	4118	938	1736	917	1362	70
Total	93896	9299	1304	40591	8774	16519	10424	6106	879

Looking back at data from the past 10 years, among appeal cases, approximately 27% of first instance judgments were revoked by the second instance court. Among these cases, 1/3 were "entirely revoked." This shows that the current quality of first instance judgments leaves much to be desired. Without improving the trial quality of the first instance, we should not rashly tighten citizens' opportunities to raise new allegations or defense methods in the second instance; otherwise, their rights will be severely impaired.

Moreover, according to Article 12 of the "Enforcement Act of the Code of Civil Procedure" accompanying the aforesaid amendment, if the aforementioned amendment passes its third reading, it will take effect immediately upon promulgation without any buffer period! Looking back at the Judicial Yuan's press release on July 4, 2018, the Judicial Yuan still had the concept of phased amendments. Now, rushing a major overhaul of the litigation system into effect is truly alarming!

II. Weak Complementary Measures for Reinforcing Factual Trials Raise Worrisome Prospects

Combining the two parts of amendments currently under review in the Legislative Yuan, the complementary systems currently proposed by the Judicial Yuan to reinforce factual trials are as follows:

1. Introducing "professional commissioners" to participate in proceedings
2. Introducing "legal experts" to participate in proceedings
3. Courts and parties scheduling trials by agreement
4. Adopting mandatory attorney representation for specific and high-value cases

It is doubtful how the first instance's trial quality and fact-finding can be reinforced solely through the aforementioned amendments. Since the regulations on professional commissioners are generally not "evidence methods," ambiguities arise as to whether their opinions can serve as the basis for judicial judgments. From a broader perspective, bypassing the "expert witness" system already introduced in the "Commercial Case Adjudication Act" in favor of the professional commissioner system is also open to question.

In addition, to enable complex legal disputes to be fully contested in the first instance, preventing parties' rights from being affected by preclusion effects due to delayed presentation in the second instance, the draft amendment stipulates that where the subject matter value of a lawsuit exceeds NT$5 million in the first instance and NT$1.5 million in the second instance, mandatory attorney representation shall be mandated, and attorney fees shall be borne by the losing party. In this regard, whether setting NT$5 million as the threshold for the first instance is appropriate, or whether there is a need to lower it further and expand the scope of application, is also worth deep consideration. Furthermore, expanding mandatory attorney representation should be complemented by adjusting the scope of legal aid to safeguard the right to litigation for citizens who cannot afford attorney fees.

Following this direction, in cases concluded in the third instance, the losing party must bear the attorney fees of both parties across all three instances. Allowing parties to carefully review this during mediation procedures also serves to accelerate proceedings and promote settlement. Taking the relevant regulations of California, USA as an example, when a plaintiff files a lawsuit, the defendant can issue a letter indicating the settlement amount currently willing to be reached. If both parties eventually proceed to trial, and the amount awarded to the plaintiff is lower than the settlement amount the defendant was initially willing to offer, the plaintiff must bear the defendant's attorney fees and other litigation costs.

III. A Solid Factual Trial Cannot Be Separated from the Reinforcement of Evidence Law

In fact, the 2017 National White Paper on Judicial Reform resolved that the Judicial Yuan should study and formulate a specialized Evidence Act applicable to criminal, civil, and administrative litigation to improve rules of evidence, promote accurate fact-finding by courts, and strengthen evidence-centric trial functions. However, in subsequent evaluations, the Civil Department opined: "Since the rules to be followed in fact-finding across civil, criminal, and administrative litigation in our country are different, the rules of evidence for each litigation procedure should be reinforced, and there is no need to enact a unified Evidence Act."

The problem is that civil litigation indeed retains a relatively strong color of ex officio evidence investigation by courts, indirectly creating blurred rules of evidence. Even if there is no need for a unified Evidence Act with criminal and administrative fields, it must still be reinforced within the "Code of Civil Procedure". However, this amendment fails to address the evidence law portion, casting doubt on the effectiveness of a solid factual trial.

First, when courts currently try civil cases, there are no clear regulations regarding the investigation procedures for testimony. In practice, judges decide based on their experience—some conduct cross-examination following the "Code of Criminal Procedure", while others question ex officio. For parties, this leaves them in a state of uncertainty. Taking Japanese law as an example, Article 202, Paragraph 1 of its Code of Civil Procedure adopts the cross-examination system, explicitly stipulating that the order of questioning witnesses shall be the party, the opposing party, and the presiding judge. In this regard, there is a necessity to review and amend this concurrently with issues like "expanding the scope of mandatory attorney representation."

It is noteworthy that the "Commercial Case Adjudication Act" passed in 2020 has already introduced the "expert witness" system to make up for the inadequacies of the current appraisal system, respect parties' procedural subject rights while safeguarding evidentiary rights, and achieve the effect of a solid factual trial. However, this amendment fails to include the "expert witness" system as a solution for a "solid factual trial" in civil cases, which is also questionable. We call for the recognition that amendments for a solid factual trial cannot be separated from the reinforcement of civil evidence law. In addition to the systems already implemented in our country mentioned above, comprehensive reviews and amendments should also be conducted regarding the "efficiency of evidence submission and investigation procedures" and the "boundaries of the court's authority to investigate evidence ex officio" to enhance the efficiency of civil trials.

IV. The Implementation of the Collegiate Panel System Should Be Reinforced and Expanded

According to the reform direction of the "pyramid-shaped litigation system," the core of fact-finding will shift to the first instance. In principle, all evidence from the parties should be presented in the first instance. Therefore, the most urgent task is the reform of the first instance procedure. Consideration must be given to expanding the collegiate panel system to strengthen the fact-finding and application of law in the first instance, which is the only way to satisfy the conditions for restricting the second instance, and will also facilitate the transmission of experience.

Even if full implementation is impossible in the short term due to insufficient human resources, efforts should still be made to effectively implement Paragraph 1 and Paragraph 3 of the "Directives for the Implementation of Collegiate Trials and Strengthening Presiding Judges' Supervisory Responsibilities in District Courts across Taiwan," implementing the first instance collegiate panel system in major civil cases, and lowering the subject matter value threshold defined as "major cases" (currently NT$6 million).

Furthermore, to enable the second instance collegiate panel system to function effectively, consideration should be given to having the three judges of the collegiate panel participate in the evidence investigation and trial procedures throughout, adopting continuous and centralized trials to achieve procedural efficiency. Meanwhile, to flexibly allocate human resources based on the nature of cases, consideration may also be given to learning from German law by stipulating that the second instance may exceptionally adopt a single-judge trial with the consent of both parties.

V. Return to the Original Intention of Reform and Never Ignore Citizens' Rights

The goal of the "pyramid-shaped litigation system" is to build an effective and prompt litigation system, enhance the protection of citizens' rights to litigation, and achieve a rational allocation of judicial resources. Therefore, the sequence of reform must first be to improve the trial quality of factual trials, and then, based on the results of performance evaluations, push forward the second-stage plan of restricting the scope of appeals. The reform package advanced by the Judicial Yuan is not only logically flawed, but also amounts to an amendment that disregards citizens' rights. Even in the draft restricting the right to appeal in the third instance, where the implementation date is to be announced separately by the Judicial Yuan, it is extremely worrisome given that the Judicial Yuan has not fully explained its schedule planning and that complementary systems are incomplete.

In addition, since citizens' right to appeal has been restricted, to avoid wrongful judgments, it is necessary to appropriately review and relax the threshold for the civil retrial relief system. However, in the official version of the draft, we only see how to prevent "repeated applications for retrial," while failing to reflect from the perspective of citizens, which is truly regrettable.

On the other hand, the current effectiveness of attorney self-regulation and discipline has long been criticized by the legal community and questioned by the public, drawing mockery of "protecting one's own kind." While expanding mandatory attorney representation cases, it is also necessary to strengthen attorney self-regulation, eliminate unqualified attorneys, improve the quality of legal services, and safeguard public rights. Accordingly, we call upon bar associations to put forward concrete explanations on how to enhance disciplinary and elimination functions. Possible methods include: collecting opinions from the public, judges, or prosecutors regarding the quality of attorney services, actively reminding the public that they can file complaints against attorneys with the association, and publishing sample complaint forms. At the same time, the Judicial Yuan should regularly and carefully review the effectiveness of the new judge evaluation system and strengthen the administrative supervisory responsibilities of court presidents to prevent public rights from being damaged by incompetent judges.

Finally, shifting the focus of case fact-finding to the first instance court will significantly increase the burden on first-instance judges. Therefore, the aforementioned reforms must be coordinated with adjustments to the "pyramid-shaped personnel organization," allowing higher-instance judges to transfer to first- and second-instance courts to handle cases, enrich human resources, and pass down trial experiences. At the same time, the personnel quota of Supreme Court judges should be correspondingly streamlined to prevent inconsistent legal interpretations. In this regard, it is also necessary for the Judicial Yuan to put forward discussions on personnel and organizational reform plans and build consensus as early as possible, rather than starting to handle them only after the amendments to various litigation laws are passed.

The "pyramid-shaped litigation system" is an important reform issue concerning citizens' rights to litigation, but judging from the current draft and planning, citizens' rights have instead become the objects of sacrifice. Accordingly, we put forward the aforementioned petition demands to the Legislative Yuan, hoping that lawmakers from all parties can return to the original reform intention of "judicial reform for the people" and properly safeguard the people's rights.