Seminar Summary | Comprehensive Review on the 40th Anniversary of the Enforcement of the State Compensation Act: Attribution Principles, Judicial Accountability, and Academic Seminar on the NGO-Proposed Draft

• Comparison Table of Provisions between the NGO Version and the Executive Yuan Version of the State Compensation Act Draft Amendments (Not finalized, for seminar use only)

Session I Significance of the Full Amendment of the State Compensation Act (Seminar Records)

Moderator: Chiang Jung-hsiang, Attorney-at-Law (Convener of the State Compensation Act Special Group Meeting, JRF)

After 40 years of enforcement of the State Compensation Act, conducting a full amendment at this stage is essentially a comprehensive review summarizing years of enforcement experience. The Executive Yuan has proposed an official draft amendment with a massive scope of revision; once passed, its impact will be far-reaching. The JRF recruited volunteer lawyers to study the legal amendments and proposed an NGO-version of the suggested amendment provisions, hoping to foster discussion, reflect the needs of the people, and enhance human rights protection.

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Speaker: Professor Lin Ming-chiang (Distinguished Professor, Department of Law, National Taiwan University)

Professor Lin Ming-chiang provided an in-depth and insightful analysis of both the Executive Yuan's version and the NGO's version of the State Compensation Act draft. Professor Lin concluded with thought-provoking remarks, including the maturity of the paradigm shift in state responsibility, whether the legal amendments should be incremental or radical reforms, the return of state compensation to the public law litigation system, and the importance of procedural reform aimed at simplicity, promptness, and effectiveness.

1. Theory of State Responsibility: According to Article 24 of the Constitution, the establishment of state compensation does not require intent or negligence on the part of public officials. Therefore, if the provisions are to shift from the paradigm of state vicarious liability to state self-liability, the requirements of "deleting public officials' intent or negligence" and "deleting the state's right of recourse against public officials" should be removed.
   • a) Deleting public officials' intent or negligence: Referring to the spirit of Article 24 of the Constitution and the interpretation of the Supreme Court (presumption of illegality and negligence), and under the mandate of administration according to law, unlawful acts by the state—regardless of whether they are attributable or not—should be compensated. This is also a characteristic distinct from civil tort law; hence, the requirement of intent or negligence on the part of public officials should be deleted.
   • b) Deleting the state's right of recourse against public officials: Under the intent of state self-liability, the right of recourse should be deleted from the State Compensation Act. The internal accountability mechanism for the administrative responsibility of public officials cannot be linked to and confused with the constitutive requirements of state responsibility.
2. Expansion of Protected Objects: Paragraph 1, Article 5 of the NGO draft expands the scope of personal injury caused by defects in the establishment or management of public facilities to all freedoms or rights. Professor Lin mentioned that Professor Liao I-nan had previously written an article suggesting that the scope of public facilities for state compensation be expanded to include "digital databases, internet, websites, or other online platforms" to compensate for damages caused to people by hackers infiltrating digital public facilities.
3. Privileges of Judges and Prosecutors: Professor Lin believes that the reasons for deleting this article are, first, that since the enforcement of the State Compensation Act in 1981, there has never been a case establishing judicial illegality. This proves that there is over-protection, which causes the norm to lose its function and violates the principle of equality, the principle of proportionality, and the mandate of Article 24 of the Constitution; second, the bizarre phenomenon where judicial illegal acts overflow from the State Compensation Act into the Criminal Compensation Act. Therefore, this article should be deleted so that lawmakers can maintain consistent and non-contradictory values (as the Criminal Compensation Act does not take "a final judgment of conviction" under Article 13 of the State Compensation Act as a prerequisite for establishing judicial illegal responsibility).
4. Mandatory Establishment of State Compensation Deliberation Committees (NGO Draft): Professor Lin opposes mandatory establishment, arguing that this will increase the administrative and procedural costs of various agencies and potentially waste people's time. Furthermore, procedural law already provides for mediation and settlement systems, and resolving disputes directly by going to court is considered more efficient.
5. Incidental Criminal State Compensation Litigation (NGO Draft): Professor Lin Ming-chiang opposes this system. Victims may bring a lawsuit before the civil court according to the main text of Article 11 of the State Compensation Act, or bring an administrative litigation according to the proviso of that article. Therefore, the State Compensation Act already overflows into the Administrative Litigation Act; adding an incidental criminal state compensation litigation system would likely create a tripartite conflict.

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Discussant: Director Liu Ying-hsiu (Director of Legal Affairs Department, Ministry of Justice)

Director Liu Ying-hsiu detailed the mindset and choices behind this legislative amendment, presenting the government's thorough considerations and facilitating the exchange of views among all parties.

1. Theory of State Responsibility: From the legislative intent and practical views, our country characterizes state responsibility as state vicarious liability. Deleting the requirement of intent or negligence on the part of public officials might raise concerns about creating a bottomless-pit bill or excessively condoning public officials. For cases where the state acts unlawfully without responsibility, they can be resolved through special laws such as the Land Act and the Police Use of Weapons Act.
2. Expansion of Protected Objects: Because public facility compensation adopts strict liability, based on the principle of risk sharing, state compensation should be appropriately restricted. Other broad freedoms or rights are expected to be handled through special legislation in the future.
3. Mandatory Establishment of State Compensation Deliberation Committees (NGO Draft): This can be assessed and established by individual agencies themselves; agencies can also decide whether to establish them through administrative rules, without necessarily resorting to legislation, avoiding administrative cost burdens.
4. Jurisdiction of State Compensation Adjudication: Based on the hierarchical court system and manpower deployment considerations, the Judicial Yuan did not incorporate state compensation types into administrative litigation. Therefore, the latest version of the draft maintains the status quo. However, if the Administrative Litigation Act is revised into a three-tier, three-instance system in the future, the Ministry of Justice will make corresponding amendments.
5. Abolition or Retention of the Prior State Negotiation System: Based on the limited nature of judicial resources and the promotion of alternative dispute resolution mechanisms, the abolition of the prior negotiation system is not favored. In addition, referring to the operation of the Singapore International Mediation Centre, the prior negotiation system should effectively reduce litigation sources.

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Discussant: Associate Professor Lin Hsing-ju (Associate Professor, Graduate Institute of Ocean Law, National Taiwan Ocean University)

Associate Professor Lin Hsing-ju noted that since Taiwan's State Compensation Act was modeled after Japanese law during its legislation and shares a similar legislative structure, Japanese law was used as a comparative legal reference.

1. Theory of State Responsibility: Although Japanese law initially adopted state vicarious liability, based on the two major functions of victim rights remedy and error correction under the law, it has now moved toward state self-liability, with the state bearing the harmful act and determining state compensation liability based on the presence or absence of illegality by public officials (i.e., objectification of negligence).
2. Design of Requirements: The causal relationship between the unlawful act and the damage may reduce or preclude state compensation liability in cases of joint tortious acts. Foreign legislative examples can be referenced on whether the state should bear ultimate guarantee liability.
3. As for the definition of "omission to perform official duties" in the Executive Yuan's draft, its application may be restrictive, so it is recommended not to give it a special definition.
4. Privileges of Judges and Prosecutors: Japan does not have a judicial officer immunity clause; instead, it reverts to the concept of public officials unlawfully exercising public authority. Regarding judges' liability, Japan is gradually moving toward a narrowing of illegality, and illegal improper trial behavior refers to a judge's interpretation of laws and regulations deviating from logic and empirical rules with obvious errors.
5. Prior Negotiation and State Compensation Deliberation Committees: Professor Lin has rich experience participating in committees and shared that the prior negotiation system has a certain effect on small-scale state compensation disputes, but large cases ultimately end up in litigation, thus supporting Professor Lin Ming-chiang's proposed procedural choice. Furthermore, referring to the Japanese system, once a state compensation lawsuit is filed, if the agency finds a possibility of losing, it becomes willing to settle. Therefore, fewer cases go all the way to the end in Japan. Professor Lin believes that through the deliberation committee, agencies will feel better and be more daring to grant compensation.

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Discussant: Professor Cheng Ming-hsiu (Distinguished Professor, Department of Law, Soochow University)

Professor Cheng Ming-hsiu echoed the reporter's opinion, arguing that Article 24 of the Constitution shows no trace of vicarious liability or arguments entrusting the legislature to formulate vicarious liability. Moreover, the right of recourse system is not equivalent to vicarious liability, and the presence or absence of the right of recourse does not diminish the personal responsibility of public officials. This can be projected onto the Audit Act, referencing the design of the right of recourse of public officials in Germany's State Liability Act of 1981 as a reference. In addition, regarding the management and establishment responsibility of public facilities, it is suggested that Paragraph 2, Article 3 of the NGO draft more accurately determine which public-private partnership models should be the government's responsibility; it is inappropriate to solve this with just a single provision due to high risk. Finally, regarding the adjudication jurisdiction of state compensation, he emphasized that the focus is on the proper coordination between the state compensation system and the "court hierarchy system" of the administrative litigation system, so that the state compensation procedure can be expected to return to the administrative litigation system.

Session II Attribution Principles of State Compensation Liability—From Negligence Liability to Risk Liability (Seminar Records)

Moderator: Professor Hung Chia-yin (Distinguished Professor, Department of Law, Soochow University)

The State Compensation Act holds an important position in the protection of people's rights and has played a certain role since its promulgation and enforcement. However, with the changes of the times, people have become more rigorous in their awareness and demands for rights protection. In response, the Ministry of Justice has convened a committee to study and revise the Act over the past few years to meet contemporary public needs, leading to the passage of the State Compensation Act draft by the Executive Yuan in 2021. It is foreseeable that this important amendment will likely be passed and enforced in the future, having a significant impact on people's rights.

Therefore, through discussions among lawyers and experts, the private sector proposed the NGO version of the state compensation draft, presenting opinions and thoughts that the official version might have failed to consider, which is admirable. The theme of this session is to discuss the choices in determining the subjective requirements of state compensation liability. Admittedly, strict liability is the most ideal and provides the most sufficient protection for the people, but based on practical considerations such as the state's financial resources, the Executive Yuan's draft adopts the principle of negligence liability. This involves a compromise between "individual rights" and the "protection of overall national interests," after all, the burden of state financial resources ultimately falls back on the people. At this stage, can Taiwan implement strict liability? Or should appropriate adjustments be made through the burden of proof shift in the NGO version? Or achieve a balance of intermediate liability between negligence and risk liability? These questions will be thoroughly discussed in this session.

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Speaker: Associate Professor Lin Chia-ho (Associate Professor, Department of Law, National Chengchi University)

Associate Professor Lin Chia-ho started with the tragedy of Professor Lin Shu-ya of Taichung Metro, pointing out the discussion on the attribution of state responsibility of the Taichung City Government in the incident, thereby triggering speculation on the possibility of "introducing the concept of private law risk liability into the public law domain," and citing German law as a reference.

Between affirming risk liability and the principle of negligence liability, there is the possibility of an intermediate liability. Understanding comprehensive risk liability may make state compensation obligations excessively rampant, and it is found that the lack of understanding by administrative agencies in specific fields will lead to inconsistent standards set by courts for establishing state responsibility. Professor Lin concluded: without shaking the principle of negligence liability, tiered risk liability is introduced to establish objective attribution standards and allocate risks in specific fields.

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Discussant: Attorney Chou Yu-hsiu (Chairperson of the Constitutional Reform Committee, Taiwan Bar Association)

Attorney Chou Yu-hsiu reviewed Article 24 of the Constitution and past judicial interpretation practices to affirm the state's responsibility for hazard prevention and mitigation, echoing the risk liability proposed by speaker Professor Lin. He also used the old Police Use of Weapons Act as an example to examine the differences in remedies between compensation and restitution, and the provisions on compensation limits under risk liability, concretizing the abstract discussion of legal principles.

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Discussant: Attorney Wang Chen-huan (Managing Partner, Chien Yeh Law Offices)

Attorney Wang Chen-huan pointed out the core issue of this theme and shared his practical experience as a lawyer in state compensation. Adopting risk liability comprehensively is currently unrealistic and would make compensation liability boundless. The residual risk after the state takes due hazard prevention and mitigation responsibility can be remedied by compensation or other means to balance the damaged rights state of the people. Ideally, he fully agrees with the speaker Professor Lin's opinion, but worries about the difficulties of categorizing risk liability in practice.

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Discussant: Professor Wang Yun-ju (Professor, Department of Law, National Chung Cheng University)

Professor Wang Yun-ju drew lessons from environmental damage issues and EU law to discuss the design of attribution principles for state compensation liability in specific fields. The professor concluded that we should ponder what kind of distance the State Compensation Act should maintain from traditional civil torts; to achieve the ultimate goal of risk distribution, we should break away from the inherent shackles and limitations of civil torts. On the procedural side, state compensation trials should return to the public law adjudication system.

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Session III The State Compensation Liability of Judges (Seminar Records）

Moderator: Attorney Huang Hsu-tian (Chairman of the Board, JRF)

This seminar focuses on the State Compensation Act as its main axis, which is of great significance. The State Compensation Act can be linked to the implementation of administration according to law and the realization of popular sovereignty; therefore, this major amendment is necessary. The theme of this session is "The State Compensation Liability of Judges," which is not only a common topic when discussing the State Compensation Act, but also involves one of the core issues of judicial reform.

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Speaker: Associate Professor Fan Wen-ching (Associate Professor, Department of Law, Soochow University)

Associate Professor Fan Wen-ching proposed two major theories behind the legislative intent of this article: one is the theory of judicial independence (but questioned the legitimacy of this theory, hence not adopted), and the other is the theory of maintaining the res judicata effect of judgments (which the professor adopts). Regarding the critique of the NGO draft, the professor stated that they are not opposed to deletion, but believe there should be supporting measures to maintain the res judicata effect of judgments. Therefore, in conclusion, personal opinion tends to maintain this article, but there are doubts about the text of the official version, including but not limited to whether dismissal or disciplinary penalties may be personality issues, whether judicial errors necessarily exist, and whether other retrial grounds should be appropriately incorporated.

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Discussant: Judge Chang Sheng-hsing

Judge Chang Sheng-hsing believes that the function of the current Criminal Compensation Act should already comply with the "state compensation" referred to in UN documents or the International Association of Judges Declaration. Therefore, he expressed doubts about the voices claiming "judicial illegality, state non-compensation."

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Discussant: Assistant Professor Lü Li-hsiang (Assistant Professor, Graduate Institute of Cultural and Educational Law & Indigenous Peoples Law Program, National Taipei University of Education)

Assistant Professor Lü Li-hsiang argued from the perspectives that judges' acts infringing upon people's rights are not necessarily limited to judgments and the deduction of the legislature's intent (including linking the commission of official crimes to the eligibility of judges to claim independence, and the legislature's intention not to delete this article across multiple past amendments) that the legislative intent of this article is not to maintain the res judicata effect of judgments, but to uphold judicial independence, and Article 13 of the State Compensation Act is necessary.

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Discussant: Assistant Professor Chang Chih-wei (Assistant Professor, Department of Public Affairs and Administration, Ming Chuan University)

Assistant Professor Chang Chih-wei mentioned that examining the exclusion grounds of Article 13 of the State Compensation Act should be based on the perspective of protecting people's fundamental rights under Article 24 of the Constitution, treating any restrictive clause as a fundamental right restriction and reviewing whether justification exists for such restriction. Whether excluding people's right of claim is the least restrictive means to maintain the res judicata effect of judgments is debatable. Furthermore, looking at the Criminal Compensation Act (including the lawful and unlawful exercise of public authority by the state), when a judge acts unlawfully, a person's right of claim is not excluded simply because the judge has not received a final judgment of conviction. This repeatedly proves the legislative intent to compensate people without shaking the res judicata effect of judgments. Therefore, as a matter of degehenda lata (legislative policy), it seems feasible to move toward narrowing the right of recourse against judges while abolishing the judge privilege system.