Hsueh Ching-piao Case

Do persons barred from military service need to report for education call-ups?

Article 5, Paragraph 1, Subparagraph 1 of the Military Service Act stipulates: "Those who have been sentenced to fixed-term imprisonment of five years or more shall be barred from military service"; Article 28, Subparagraph 3 stipulates: "Where a reservist is barred from military service in accordance with the law, their status as a reservist shall be extinguished." Furthermore, pursuant to Article 37 of the Military Service Act, only reservists are required to respond to education call-ups.

Accordingly, Hsueh Ch'ing-p'iao, who had already been sentenced to 16 years of imprisonment and had lost his status as a reservist due to being barred from military service, received an education-call-up notice despite having no precondition to respond to it. Evidently, there was no possibility of him obstructing military service.

Twists and turns in extraordinary relief

Assisted by the JRF volunteer attorney team, Hsueh Ch'ing-p'iao's alleged case of obstructing military service had its retrial proceedings initiated in April 2024 by the Chiayi District Court via Criminal Ruling 113-Su-Chian-Tsai-2-2024.

During the proceedings, the judge deemed this case to be a procedural issue and thus referred it to the Chiayi District Prosecutors Office, requesting them to petition the Prosecutor-General for an extraordinary appeal. The Prosecutor-General lodged the extraordinary appeal on the grounds that: "Since Hsueh Ch'ing-p'iao lost his status as a reservist, he inherently had no further obligation to respond to education call-ups. Consequently, his relocation of residence without making reports as prescribed, thereby causing the education-call-up order to be undeliverable, can hardly constitute the offense of a reservist, with intent to evade call-up processing, relocating their residence and failing to report without justifiable cause, thereby causing the education-call-up order to be undeliverable"; and "The original judgment failed to perceive this and still held the defendant guilty of the said offense, sentencing him to punishment pursuant to Article 10, Paragraph 3, Paragraph 1, Subparagraph 3, and Article 6, Paragraph 1 of the Offences Concerning Military Service Act prior to amendment, which manifestly constitutes an illegality of improper application of legal rules in the judgment."

However, Supreme Court Criminal Judgment 113-Tai-Fei-89-2024 dismissed the extraordinary appeal on the grounds that: "The grounds for being barred from military service do not necessarily take effect to bar the execution of military service" and "Whether the facts and evidence establish that the defendant was retroactively barred from military service or lost his reservist status as of the relevant dates of the education call-up in this case are sufficient to warrant a judgment of not guilty, and the defendant may still seek relief through retrial proceedings."

As one of the avenues for extraordinary relief, extraordinary appeal already requires securing the favor of the Prosecutor-General, which is no easy feat. In this case, even though the Prosecutor-General had recognized the controversy and filed an extraordinary appeal, it was still dismissed by the Supreme Court, with the reasoning stating that the case could seek relief through retrial proceedings. This undoubtedly raises questions once again regarding whether the dual-track relief system under our country's current Code of Criminal Procedure truly helps redress wrongful convictions.

A hard-won judgment of not guilty

After the extraordinary appeal was dismissed, the case returned to the retrial proceedings. On March 31, 2025, referencing the notice of being barred from military service submitted by Hsueh Ch'ing-p'iao with the assistance of the volunteer attorney team, the Chiayi District Court rendered Judgment 113-Tsai-2, holding that Hsueh Ch'ing-p'iao met the conditions for being barred from military service under the Military Service Act and lost his reservist status.

Since Hsueh Ch'ing-p'iao did not possess reservist status at the time, naturally he was not required to respond to an education call-up, nor was it possible for him to have committed the offense perceived by the prosecutor—namely, "moving and failing to report in order to evade a call-up despite being a reservist, causing the call-up order to be undeliverable."

Perhaps agreeing that the controversy in this case was not complex, the prosecutor did not appeal after the Chiayi District Court delivered a not-guilty judgment. With the assistance of the volunteer attorney team, Hsueh Ch'ing-p'iao was finally acquitted with finality.

No miscarriage of justice is too small to redress; we hope the judicial system takes this as a warning to be meticulous and impartial

Although the current Code of Criminal Procedure establishes a dual-track relief system of "retrial" and "extraordinary appeal" for extraordinary relief, if achieving effective relief in practice depends on whether there are divergent opinions within the judicial system regarding the interpretation of a case's issues, it undoubtedly makes the path to redressing wrongful convictions even longer and more arduous.

Taking Hsueh Ch'ing-p'iao's case as an example, the core issue involved is none other than "whether a person barred from military service is still a reservist." This is hardly complex, yet it still struggled between the extraordinary remedies of "retrial" and "extraordinary appeal."

We expect the judicial system to place greater emphasis on the obstacles to miscarriage-of-justice relief so as to minimize the consumption of judicial resources while also alleviating the mental and temporal torment inflicted upon the innocent victims of wrongful convictions.