Sidelights | The Will to Kill Spanning Three Decades: A Discussion on the Rules for the Execution of Death Sentences

Speaker ｜ Lin Yung-sung (Member of the Standing Board of Directors, JRF)

Speaker ｜ Szu-yu Chen (Member of the Standing Executive Committee, JRF; Member of the Human Rights Committee, Taiwan Bar Association)

In the "Pen" section of the "Becoming an Ordinary Person" exhibition, we witness the turbulent history of 30 years of judicial reform, which includes reforms driven by major wrongful conviction cases. However, many individuals passed away, bearing grievances, before these reforms could take place.

The emergence of the Rules for Executing Death Sentences was brought about by the "Chou Hsun-shan incident" in 1999. Had these Rules not instituted strict restrictions over the past three decades—requiring the suspension of execution upon the filing of a motion for retrial, a constitutional litigation, or an extraordinary appeal—individuals such as Hsu Tzu-chiang, Hsieh Chih-hung, and Cheng Hsing-tse, whose wrongful death penalty convictions have now been exonerated, would never have had the possibility of surviving to be vindicated.

On March 24, 2025, the Democratic Progressive Party (DPP) government pre-announced the draft amendments to the Rules for Executing Death Sentences, substantially loosening the restrictions on executing the death penalty. These Rules were officially promulgated yesterday evening (April 16) and will rapidly take effect this Friday (April 18). Under these Rules, while a defendant is seeking remedies and the retrial court or the Constitutional Court is reviewing the case, the Ministry of Justice may execute a death-row inmate by firing squad as long as no ruling to suspend execution has been issued.

We invited Attorney Lin Yung-sung, founder of JRF and former counsel for the Hsu Tzu-chiang case, and Attorney Chen Chen, current member of the Standing Executive Committee of JRF who has previously authored analytical articles on Taiwan's death penalty sentencing and execution status: Facing the Rules for Executing Death Sentences, what lessons does history teach us? What else do we see for the future?

The lecture series held during the "Becoming an Ordinary Person" exhibition selected key themes from the 30-year development of Taiwan's judicial reform for in-depth sharing and discussion. Among them, the pre-announcement of the draft Rules for Executing Death Sentences on March 24, 2025, substantially relaxed the restrictions on carrying out executions. Under these Rules, as long as a ruling suspending execution has not been rendered while the defendant is pursuing remedies reviewed by a retrial court or the Constitutional Court, the Ministry of Justice can execute death-row inmates by firing squad. This represents one of the rare areas of reform that has experienced significant regression over the past 30 years.

This session featured introductory remarks by Assistant Researcher Lin Cheng-ching, with Attorney Lin Yung-sung (Member of the Standing Board of Directors, JRF) and Attorney Chen Chen (Member of the Standing Executive Committee, JRF) serving as discussants, exploring how the Rules for Executing Death Sentences were step-by-step written and amended, and how they impact an individual's life and death.

Attorney Lin Yung-sung: Discussing the Rules for Executing Death Sentences Through Stories of Death Penalty Rescue

Attorney Lin Yung-sung began by discussing three rescue cases he personally participated in. These rescue stories remain his heaviest memories since becoming a lawyer.

The first death-row inmate rescued was named Chou Hsun-shan. This case was a pro bono death penalty defense assigned by the Taipei Bar Association. At the time, Chou Hsun-shan had no family members. Once the final judgment was rendered, logically, the pro bono lawyer's work would have come to an end. However, the previously handling attorney, surnamed Chu, still harbored doubts about the judgment yet felt utterly helpless; the detention center even called asking him to "pacify" the inmate's emotions. Attorney Chu therefore called his junior schoolmate, Attorney Lin. Attorney Lin decided to immediately file a motion for retrial and sought out the then-Minister of Justice, because as long as the Minister did not sign the "execution warrant," the death penalty would not be carried out.

Through the vigorous efforts of Legislator Yeh Chu-lan, Attorney Lin secured a meeting with Minister of Justice Cheng Chung-mo within eight or nine days of receiving the news. The Minister candidly admitted that many death penalty cases indeed had serious problems, but by the time Attorney Lin reached the Minister, the execution warrant had already been signed, rendering that rescue effort ultimately unsuccessful.

Subsequently, the Taipei Bar Association conducted a questionnaire, and many lawyers reported that individuals had been executed by firing squad even before a ruling on a retrial motion was received. It was precisely during this period that everyone abruptly realized: Taiwan "had the death penalty," yet lacked a clear set of execution rules. Chou Hsun-shan was not the only death-row inmate to experience this situation; cases executed prior to receiving adequate legal remedies were not uncommon. Consequently, Attorney Lin and human rights workers began demanding that the Ministry of Justice establish clear regulations. On May 4, 1999, through everyone's collective efforts, the Essentials for the Execution of Death Sentences were finally established. The Essentials at that time stipulated that: (1) executions could not take place within ten days of the defendant or defense counsel receiving the final judgment; and (2) executions could not take place if the Prosecutor-General had already filed an extraordinary appeal.

The second rescue case was the Hsu Tzu-chiang case. In 2000, driven by the calls and perseverance of Hsu's mother, Attorney Lin filed petitions and appeals with the Control Yuan, which prompted the Control Yuan to actively intervene. In practice, once the Control Yuan requested case files, death penalty executions had to be temporarily halted. The Prosecutor-General filed an extraordinary appeal based on the Control Yuan's investigation report, but it was dismissed by the Supreme Court, which upheld the original final judgment. Under the then-existing Essentials for the Execution of Death Sentences, an execution risk immediately arose once the first extraordinary appeal was dismissed. Hsu's family and the JRF had no choice but to hang protest banners outside the Ministry of Justice. The Prosecutor-General subsequently filed second and third extraordinary appeals, all of which were similarly dismissed. Driven to a desperate corner, the defense team decided to pursue two paths simultaneously: petitioning the Grand Justices for an interpretation and organizing the Alliance to Abolish the Death Penalty (precursor to TAFAD). Ultimately, the constitutional interpretation was successful, resulting in Judicial Yuan Interpretation No. 582, which granted Hsu Tzu-chiang the opportunity for a retrial. Following this, through the retrial proceedings (known as Geng-Liu to Geng-Ba trials), he was repeatedly sentenced to death, and later to life imprisonment during the Geng-Qi and Geng-Ba retrials. Hsu's family fell into a agonizing struggle over whether to "compromise." By the time of the Geng-Jiu retrial, the collegiate panel inquired whether the newly promulgated Fair and Speedy Criminal Trials Act should apply—which was essentially asking whether to plead guilty in exchange for a lighter sentence. After discussing with the defense team, Hsu's family decided against its application. Ultimately, the High Court acquitted Hsu Tzu-chiang in the Geng-Jiu retrial judgment.

The third rescue case was named the Lu Cheng case. Lu Cheng had briefly served as a police officer before being accused of kidnapping for ransom and sentenced to death by a final judgment. Lu's older sister continuously proclaimed his innocence and petitioned the Judicial Reform Foundation for assistance. The JRF defense team once again sought help from the Control Yuan, which initiated the file-retrieval procedure. However, one day a phone call came through bearing the news: the execution had already been carried out. It turned out that the retrial had been dismissed by the court, and for a period the Control Yuan was unable to retrieve the case files; the Minister of Justice had approved the execution during this interim period. According to accounts relayed by his family, Lu Cheng shouted that he was innocent all the way from his prison cell to the execution ground, dying with an everlasting grievance. Afterward, the family still commissioned the Control Yuan to continue its investigation, and the Control Yuan's report listed numerous doubts, concluding that the possibility of a wrongful conviction remained. Attorney Yung-sung lamented: Although the old version of the Essentials stated that "a retrial may be filed," it also dictated that "once the retrial is dismissed, the execution may proceed"; and the latest amendments to these Essentials have actually taken a step backward.

At this point, Attorney Yung-sung brought the focus back to the institutional level. The newly amended Essentials for the Execution of Death Sentences of April 16, 2025, extended the buffer period of "no execution within 10 days after the service of the judgment" to 20 days, which superficially looks more rigorous. However, it simultaneously added a new requirement: "Merely filing for a retrial is insufficient to suspend execution; there must be a court ruling suspending execution, otherwise execution cannot be withheld." In other words, if there is only a filing without a suspension ruling, the execution may still proceed. On the other hand, executions cannot proceed only when the Prosecutor-General has filed an extraordinary appeal; if the defendant or defense counsel merely requests the Prosecutor-General to file an extraordinary appeal without it actually being filed, the execution may still proceed. As for constitutional litigation, an execution cannot proceed only if the Constitutional Court issues a "provisional measure" ruling in the specific case; merely initiating constitutional litigation itself will not halt the execution. Attorney Yung-sung stated that Taiwan's retrial approval rate is less than 1%, and one must still clear the procedural threshold of "first granting a retrial" before entering substantive review. Under the old system, merely filing a motion halted execution, whereas the new system mandates a suspension ruling. Such changes threaten to render ongoing legal remedies "invalidated in practice."

During the lecture, Attorney Yung-sung also reviewed the catalyst for the legal aid system, the establishment of the Legal Aid Foundation, and the enactment of the Crime Victim Rights Protection Act in 2020. All of these systems relate to procedural justice and compensation, yet current budgets and implementation remain weak. Attorney Yung-sung concluded: The debate over the abolition or retention of the death penalty is open for discussion, but execution rules must at the very least be cautious. Even within a system where the death penalty persists, every step—from investigation and trial to legal remedies and execution—must be ensured to comply with due process.

Attorney Chen Chen: Exploring the Rules for Executing Death Sentences from the Perspectives of the Constitution and International Human Rights Law

Attorney Chen Chen then continued the discussion from the perspectives of constitutional law and international human rights law.

Attorney Chen reminded the audience that the abolition or retention of the death penalty and the manner in which it is executed can actually be discussed separately: even those who advocate for retaining the death penalty should agree that the execution stage must strictly adhere to due process. Attorney Chen pointed out the 2024 Constitutional Court Judgment No. 8 (113 Hsien-Pan 8): Cases addressing the constitutionality of the death penalty at the constitutional level in our country have actually been rare; important milestones include Interpretations No. 194 and 263, alongside this year's Judgment No. 8. Judgment No. 8 explicitly states that the death penalty can only be applied to the most serious crimes, and procedurally must conform to the strictest due process of law—including the presence of defense counsel during prosecution and three-instance trials, oral arguments, courtroom trials, and comprehensive consideration of the perpetrator's mental state and cognitive capacity at the time of the offense and during trial. Going further, the Constitutional Court explicitly required for the first time that substantive review standards be established for the execution stage: if an execution fails to comply with due process or infringes upon human dignity, it constitutes "torture." These are elements that had never been explicitly written down in the past.

Discussing further the "execution of punishment": In practice, courts transmit final judgments to the corresponding prosecutors, who then issue execution directives and other documents. The relevant legal basis is scattered across Articles 462, 463, and 464 of the Code of Criminal Procedure, as well as Paragraph 2 of Point 4 and Point 6 of the Rules for Executing Death Sentences. After a death sentence becomes final, the Supreme Court transmits the case files to the Ministry of Justice. Once the Ministry issues the execution warrant, it is handed over to the executing prosecutor. Legally, all three parties bear the obligation to review whether statutory obstacles to execution exist—such as whether the judgment has been lawfully served or whether an extraordinary appeal has been filed. Theoretically, a remedy known as "objection to punishment" is available for the person to be executed, but it has almost never truly functioned in death penalty cases, and most inmates are even deprived of the opportunity to obtain legal consultation during the execution proceedings.

Attorney Chen further pointed out that the main text of Judgment No. 8 explicitly mentions that our country should establish a system to examine the mental state of inmates prior to execution, prompting the Constitutional Court to rule that executions must not be carried out before the completion of remedial legislation within a specified timeframe. However, what the public witnessed was the execution of the "Huang Lin-kai case" on the very day of his execution, triggering societal controversy. Civil society organizations pointed out at the time that this action violated the requirements of the Two Covenants and Judgment No. 8, because since the amendments had already been pre-announced, logic dictated that executions should await the establishment of the mechanism. Attorney Chen criticized the subsequent draft amendments released by the Ministry of Justice for failing to echo the core requirements of Judgment No. 8, as if government agencies do not respect the Constitution and the rule of law.

Addressing the context of international law, Attorney Chen synthesized the Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and human rights review mechanisms, pointing out that although Taiwan is not a state party, it has domesticated the Two Covenants via the Enforcement Act, explicitly stipulating that all levels of agencies and courts "shall refer to" the Covenants and General Comments as interpretive bases. Meanwhile, the United Nations Human Rights Committee's General Comment No. 36 emphasizes that executions must be based on a "final judgment" and ensure that inmates have genuinely exhausted all judicial or quasi-judicial remedies. Viewed from this perspective, under the current amendments to the Essentials—where executions may proceed even before a retrial ruling is granted, an extraordinary appeal is filed, or provisional measures are issued in constitutional litigation—there is a risk of conflicting with the requirement of "exhaustion of remedies."

Attorney Chen concluded by returning to the essence of due process of law: the execution of the death penalty involves the right to life, and naturally warrants substantive judicial intervention, guarantees of a fair trial, timely and effective remedies, and accessibility to the assistance of defense counsel. None of these can be left merely on paper.

Q&A Session (Concluding Remarks)

During the Q&A session, discussions extended to institutional design and political risk. Someone asked whether a mechanism allowing society to "jointly review" (such as parole thresholds and citizen judge participation) could be established to foster dialogue between public opinion and the rule of law.

Attorney Lin Yung-sung responded that the recent amendments appear to stem from anxiety over "long-term non-execution following final death sentences," prompting attempts to streamline procedures. However, returning to the yardstick of Judgment No. 8, such a direction is inherently contradictory. Theoretically, adjudication should not be swayed by external forces of public opinion, otherwise the rule of law will be easily pushed around.

Another question asked "why the Ministry of Justice initiates executions"? Attorney Chen Chen replied that an executing prosecutor is not entirely without discretion under the orders of the Ministry of Justice; to curb executive power, judicial intervention is necessary—such as enabling the "objection" procedure for death penalty executions to genuinely function, or exploring other institutional pathways.

When someone worried, "What should we do if the Constitution or the law is not respected and the rule of law regresses?" Attorney Chen noted that international comparisons show democratic backsliding is widespread in today's world. While external conditions such as support from supranational organizations (e.g., the European Union) and surrounding cultures are important, Taiwan must rely even more heavily on internal forces—judicial review and regular elections. Strategic litigation pushing individual cases to the Constitutional Court is one path to "return rule by law to the rule of law"; public dialogues like today's also accumulate societal understanding.

Finally, someone asked: "Is the prerequisite for abolishing the death penalty correctional education, or clarifying the rules of sentencing and execution first?"

Attorney Yung-sung's answer was pragmatic: Regardless of whether it is abolished or retained, execution rules must comply with due process—including wrongful convictions and mental state assessments—which is fundamentally the responsibility of the Ministry of Justice. Attorney Chen responded that the abolition of the death penalty is a public policy debate, centered on where society is willing to draw the boundary for the most severe punishment; if society insists on "retribution," this question remains difficult to resolve. Yet as long as the death penalty remains, executions must comply with the law, the Constitution, and human dignity. She recalled reading what a death-row inmate wrote in prison: "If only there were an 'if,' but there are no 'ifs.'" When the system fails to provide an "if," repentance and self-reflection are also forced to lose their meaning.