Post-Meeting Press Release | Where is the Impact Assessment for Curtailing Citizens' Right to Appeal? Public Hearing on Implementing Judicial Reform to Establish a Pyramid-Shaped Litigation System

On March 21, 2022, the Judicial Reform Foundation (JRF) expressed concerns regarding the draft amendments to the Code of Civil Procedure promoted by the Judicial Yuan. We believe that before legislation aimed at improving the quality of adjudication in courts of first instance is passed and its effectiveness evaluated first, amendments that curtail the right to appeal may cause the public to suffer harm before reaping any benefits. In response, the JRF simultaneously launched a petition opposing the amendments.

Today, Convener I-Hsin Chen of the Judiciary and Organic Laws and Statutes Committee of the Legislative Yuan convened a public hearing on "Implementing Judicial Reform to Establish a Pyramid-Shaped Litigation System," inviting official representatives, experts, and scholars from various sectors to discuss the matter. Our Foundation's Chairman, Attorney Yung-Sung Lin, was also invited to attend and further raised the following questions.

Petition Status

Since the launch of the petition, 5 bar associations and 27 civil organizations have joined 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 Jury Association, Association for the Promotion of ROC Children's Rights, Citizen Congress Watch, Covenants Watch, Environmental Jurists Association, Algal Reefs referendum Promotion Alliance, Taiwan Healthy Air Action Alliance, Anti-Danshui-Binhai Expressway Alliance, National Federation of Environmental Protection Civil Servants Unions, Environmental Rights Foundation, The Garden of Hope Foundation, National Alliance of Taiwan Women's Associations, Taipei Women's Rescue Foundation, Taiwan Labor Front, Association of Work-Injured Victims, Kaohsiung Independent Industrial Union, Chunghwa Telecom Workers Union Kaohsiung Branch, China Steel Express Corporation Enterprise Union, Association of Work-Injured Victims, Chunghwa Telecom South Branch Enterprise Union, National Confederation of Trade Unions, RCA Care Association, Chung-Kwan Information Inc. Enterprise Union, Taoyuan Local Alliance, Taiwan Youth Foundation, Watchout Taiwan.

This demonstrates that, aside from bar associations, various types of civil organizations that interact with the public and assist in fighting for legal rights are also deeply concerned about whether civil adjudication can be fair and conducive to discovering the truth.

Assessing Adjudication Quality Through Reversal Rates

Calculations made by our Foundation based on statistical data published by the Judicial Yuan (the calculation results here differ from the "upholding rate" published by the Judicial Yuan; see Statistical Data Compilation for details) reveal that the average reversal rates for first-instance civil judgments over the past decade are as follows:

Rate at Which Second-Instance Courts Reversed First-Instance Civil Judgments

	2011	2012	2013	2014	2015	2016	2017	2018	2019	2020	Average
Reversal Rate	23.80%	24.48%	24.35%	24.07%	25.12%	25.96%	27.66%	26.26%	25.40%	26.02%	25.31%

Rate at Which Third-Instance Courts Reversed Second-Instance Civil Judgments

	2011	2012	2013	2014	2015	2016	2017	2018	2019	2020	Average
Reversal Rate	22.08%	18.84%	23.71%	25.73%	24.06%	20.88%	21.43%	23.45%	26.39%	29.57%	23.61%

The above statistics show that over the past decade, the reversal rate for first-instance civil judgments has been 25%, and for second-instance civil judgments, it is 24%, with no downward trend year by year. Notably, for second-instance civil judgments, the reversal rate has risen from 21% to 30% since 2016.

This data may indirectly reflect the quality of first- and second-instance judgments and serve as a reference for determining whether "fact-finding proceedings are robust." We believe that the aforementioned data demonstrates that the quality of fact-finding in our nation's courts still requires further improvement and consolidation. Regarding reform, the Judicial Yuan should first propose concrete plans in this regard.

The Two Subparagraphs Projected for Deletion in Article 447 of the Code of Civil Procedure Account for 86% of Cases Permitted to Be Presented!

On April 18 of this year, our Foundation searched and analyzed 200 judgments from the Taiwan High Court applying Article 447 of the Code of Civil Procedure and found (link) that the rate of utilizing Subparagraphs 3 and 6 to permit parties to present new allegations and defense methods is as high as 86%. Extrapolating the 2021 situation based on this proportion, among 276 relevant judgments utilizing Subparagraph 3 or 6, approximately 237 may have done so (historically, the Taiwan High Court concludes 6,000 to 7,000 cases annually).

In this regard, if Subparagraphs 3 and 6 are deleted in accordance with the Judicial Yuan's amendment direction (and without a implementation buffer period), it may lead to situations where parties wish to supplement their allegations and defense methods but are unable to present them, or where presentation remains impermissible even in cases of manifest unfairness. This could diminish the courts' function in discovering the truth and seriously impact citizens' rights and interests.

Of course, adjustments can be made legislatively to enhance the efficiency of the litigation system. However, the premise must still return to: Can the quality of fact-finding in first-instance courts be improved? Can first-instance courts appropriately remind the public to submit evidence in a timely manner? If we are to follow the Judicial Yuan's direction, it is imperative to first elevate the quality of first-instance judgments and reduce the circumstances in which second-instance courts can apply Subparagraphs 3 and 6.

The Expansion of the "Leave-to-Appeal System" for Civil Third-Instance Cases May Impact 70% of Meritorious Appeals

According to relevant judicial statistics from the Supreme Court in 2020, the ratio of judgments dismissing appeals as "unmeritorious or unlawful" is 70%, while the ratio of "meritorious appeals" (reversing and remanding or rendering own judgment) is approximately 30%.

Among these, our Foundation analyzed the reasons for reversals and remands (link) and found that 70% of successfully remedied cases may have had their original judgments reversed and remanded by the Supreme Court pursuant to Article 469, Subparagraph 6 of the Code of Civil Procedure (judgments lacking reasons or containing contradictory reasons).

In other words, if, according to the Judicial Yuan's amendment direction, this provision—the most frequently applied in practice—is changed to require "leave from the Supreme Court" before an appeal can be filed, will cases that currently receive remedies under the existing system still be able to receive them? Particularly since leave to appeal from the Supreme Court is prescribed as "limited to cases involving the development of law, ensuring consistency of judicial judgments, or other legal interpretations of principal importance," how much of a function of individual case remedy can the future leave-to-appeal system exert? We certainly cannot be optimistic!

The aforementioned statistics are the analytical results of our Foundation after collecting limited data and naturally have their limitations. The question is: For a bill that so significantly impacts citizens' rights and interests, did the Judicial Yuan conduct a comprehensive impact assessment and human rights impact assessment during its deliberation? Can the data from the policy deliberation process be made public?

The JRF calls upon political parties across the pan-green and pan-blue spectrum to supervise the Judicial Yuan in establishing comprehensive complementary measures and impact assessments to safeguard citizens' litigation rights and interests.

Press Contact

Deputy Director of Legal Policy Department, Attorney Cheng-Yen Lu