Articles 7-11 of The Implementation Rules of the Code of Criminal Procedure

Articles 7-11 of The Implementation Rules of the Code of Criminal Procedure

Article 376 of the Code of Criminal Procedure formerly barred appeals to the Supreme Court in cases involving minor offenses. As a result, defendants who were acquitted at first instance but convicted on appeal at second instance were denied even a single opportunity to appeal their conviction. After J.Y. Interpretation No. 752 declared this unconstitutional, the Legislative Yuan amended Article 376.

However, while the late-2017 amendment to Article 376 allows cases in which an acquittal is reversed and a conviction entered to be appealed to the third instance going forward, it said nothing about how to handle convictions at second instance that had become final before the amendment took effect. Those whose right of appeal had been taken away in the past were therefore still left without a remedy. To address this, Article 7-11 was added to The Implementation Rules of the Code of Criminal Procedure, creating a two-year "transitional period" during which people acquitted at first instance and convicted at second instance by final judgment could seek a remedy once more.

The "rehearing" procedure under Article 7-11 of The Implementation Rules of the Code of Criminal Procedure is a "special extraordinary remedy." It is distinct from the extraordinary remedies provided in the Code of Criminal Procedure—namely, retrial and extraordinary appeal. Under this procedure, a defendant whose acquittal was reversed and replaced with a conviction may, for their own benefit, petition the Supreme Court for a rehearing on the grounds set out in Articles 377 to 380 of the Code of Criminal Procedure.

When a court decides a case against a person, that person must be given an opportunity to seek a remedy. The procedures the State provides for seeking a remedy in ordinary circumstances are called ordinary remedies—what we usually call an "appeal." In designing them, the legislature makes a policy judgment about how far the opportunity for review should extend in order to strike a reasonable balance among competing values, such as state resources and the protection of individual rights, and sets the scope of ordinary remedies accordingly. Beyond that scope, the legislature in principle chooses not to provide further review, but as an exception, and in order to protect individual rights, it still allows a remedy when certain conditions are met. These are known as "extraordinary remedies."

Article 7-11 of The Implementation Rules of the Code of Criminal Procedure provides an extraordinary remedy for final judgments in cases where the defendant was acquitted at first instance, convicted at second instance, and barred from appealing to the third instance. These judgments remain final; the passage of Article 7-11 does not unsettle their finality or turn them back into non-final judgments. Strictly speaking, therefore, no question of retroactivity arises. Instead, Article 7-11 creates a procedure under which defendants whose convictions on appeal have become final may, under certain conditions, petition the Supreme Court for a rehearing within two years after the article takes effect.

Why Do We Need Article 7-11?

Isn't J.Y. Interpretation No. 752 Enough?

What about "Retroactivity"?

Have Laws Been Amended Retroactively Before?

About the Rehearing Procedure

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