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?
Retrial and extraordinary appeal are extraordinary remedies available after a judgment becomes final. They presuppose that, before the judgment became final, the Code of Criminal Procedure had already given the parties the procedural protections required by the constitutional right of access to the courts. Because that right was supposedly already protected before finality, the requirements for obtaining a retrial or an extraordinary appeal are naturally stricter.
However, in cases where the defendant was acquitted at first instance and convicted at second instance with no right of appeal, J.Y. Interpretation No. 752 held that the Code of Criminal Procedure had failed to provide at least one opportunity to appeal in order to prevent errors and injustice, in violation of the constitutional right of access to the courts. It further held that neither retrial nor extraordinary appeal can substitute for the ordinary remedy of an appeal.
The reasoning of J.Y. Interpretation No. 752 states plainly that the requirements for retrial and extraordinary appeal are extremely strict and that, in practice, even fewer petitions succeed; retrial and extraordinary appeal therefore cannot replace the ordinary remedy of an appeal.
Take the case of Dr. Huang Hui-fu: he filed three petitions for retrial and three for extraordinary appeal, all of which were rejected. Moreover, the requirements for a retrial are stricter than those for an appeal to the third instance, and the right to a third-instance appeal cannot be taken away simply because Dr. Huang could petition for a retrial.
Because the right of access to the courts was violated before these judgments became final, it would be wrong to subject these cases to the very strict requirements of retrial or extraordinary appeal. A separate, special extraordinary remedy is therefore necessary.
According to judicial statistics, there are about 300 to 400 cases a year in which an acquittal is reversed and a conviction entered with no right of appeal. So far, JRF has received more than 20 complaints from people who wish to petition for a rehearing. Article 7-11 is not legislation for a single case.
| Year | 2012 | 2013 | 2014 | 2015 | 2016 | Average |
| Number of Cases | 377 | 369 | 344 | 300 | 398 | 358 |
A criminal conviction not only makes it harder for a person to find work or to travel abroad; if the second-instance conviction is in fact wrongful, it also does enormous damage to the person's reputation, a burden they must carry for the rest of their life. In Dr. Huang Hui-fu's case, his hospital barred anyone with a criminal record from applying for promotion or further training, so his research on burn treatment and limb reconstruction was put on hold. The conviction on appeal destroyed his career. In another case brought to us, a final conviction at second instance led to the revocation of the person's parole, forcing them to serve out the rest of an original life sentence. Even a conviction for a minor offense can thus have a devastating impact, and these people truly deserve another chance to seek a remedy.
Isn't J.Y. Interpretation No. 752 Enough?
The amendment applies only to cases decided after it took effect. Cases that had already become final before then cannot be appealed under the new provision.
When declaring a law unconstitutional, the Grand Justices generally do not address cases decided before the Interpretation was issued, other than the case of the petitioner. Constitutional interpretation is an exercise of judicial power, and the Justices need not express any view on past cases that were never brought before them. That question falls within the domain of the legislature.
J.Y. Interpretation No. 752 addressed only cases in which the period for appeal had not yet expired on the date the Interpretation was issued; it said nothing about cases in which that period had already expired. Legislation giving such cases an opportunity for a remedy therefore does not conflict with the Interpretation. Whether those cases should have a remedy is a question the legislature is free to resolve.
J.Y. Interpretation No. 670 declared Article 2, Subparagraph 3 of the Compensation Act for Wrongful Detentions and Executions (the predecessor of the Criminal Compensation Act) unconstitutional, holding that the provision would cease to be effective no later than two years after the Interpretation was issued. The legislature nevertheless decided that cases decided before the provision ceased to be effective (including those decided before the Interpretation was issued) should also be covered, and added Article 39, Paragraph 2 to the Criminal Compensation Act (see below). The legislative explanation states that when a person has suffered a special sacrifice beyond what can ordinarily be expected for the sake of the public interest in enforcing criminal law, and that person's subsequent claim for compensation was rejected by the deciding authority under an unconstitutional law, it would be unjust not to give them an exceptional opportunity for a remedy.
In cases where a claim for compensation was rejected during the five years before the amendment of this Act took effect on September 1, 2011, pursuant to Article 2, Subparagraph 3 of this Act as in force before its amendment on June 13, 2011, the victim may, within two years from September 1, 2011, petition the authority that made the original final decision for a rehearing on the ground that the law applied in the original final decision contravenes the Constitution.
What about "Retroactivity"?
The principles of legal certainty and non-retroactivity rest on the idea that a state governed by the rule of law expects its people to obey the law. If conduct that was lawful becomes unlawful after the law is amended, and the law then reaches back to condemn that earlier lawful conduct, people will not know whether to obey the law, and their trust in the law will be shaken—a serious blow to the rule of law. These principles therefore require that an amended law, as a rule, apply only from the time it takes effect and not govern conduct before the amendment. A good example is the principle of legality in Article 1 of the Criminal Code, which provides that conduct may be punished only if expressly prescribed by the law in force at the time it was committed; in other words, a later law cannot be used to punish conduct that was not prohibited when it occurred.
Conversely, if conduct was unlawful but the legislature later decides it should be lawful and amends the law accordingly, applying the new law to earlier conduct will naturally be welcomed by the public. People will continue to obey the law, their trust in it will not be shaken in the least, and the rule of law will suffer no harm. A good example is the proviso to Article 2, Paragraph 1 of the Criminal Code, which provides that if the law is changed after an act is committed and the new law is more favorable to the offender, the law most favorable to the offender shall apply.
Clearly, the principles of legal certainty and non-retroactivity come into play only when an amendment is less favorable to the people affected. When an amendment benefits them, there is no question of violating these principles. Article 7-11, which gives people the right to a rehearing, is an amendment in their favor and therefore does not violate the principles of legal certainty or non-retroactivity.
Yes. For example, in J.Y. Interpretation No. 410, the Grand Justices found it unconstitutional that an amendment to the marital property regime had not been made retroactive: "Because the Enforcement Act of the Part of Family of the Civil Code made no special provision regarding the amendment of Article 1017 of the Civil Code on the ownership of the spouses' joint property, joint property acquired before the amendment and still in existence continues to be governed by the former provision, with the husband continuing to enjoy the rights to it. This fails to give full effect to the constitutional guarantee of gender equality."
Have Laws Been Amended Retroactively Before?
Article 7-8 of the Enforcement Act of the Code of Criminal Procedure (see below) applies the new, broader grounds for retrial retroactively to all past cases. According to its legislative explanation, the purpose is to give full effect to the amendment of the retrial system, which aims to uncover the truth and achieve justice. As a result, petitions for retrial that were rejected before the amendment can be filed again under the new law. This is a clear example of retroactive application in criminal procedure.
Where, before the amendments to the Code of Criminal Procedure passed on January 23, 2015 took effect, a petition for retrial was filed on the basis of new facts or new evidence that did not fall under Article 420, Paragraph 1, Subparagraph 6 of the Code as it stood before the amendment, and the petition was withdrawn by the petitioner under Article 431, Paragraph 1 of the Code, or was dismissed by the court under Article 434, Paragraph 1 of the Code solely on the ground that the evidence was not new evidence that the trial court had failed to discover, investigate, and consider before judgment, Article 431, Paragraph 2 and Article 434, Paragraph 2 of the Code shall not apply to a new petition for retrial filed after the amendments take effect on the basis of the same facts and evidence, if those facts and evidence meet the amended requirements. In the circumstances described in the preceding paragraph, Article 431, Paragraph 2 and Article 434, Paragraph 2 of the Code shall still apply after the petition is withdrawn by the petitioner under Article 431, Paragraph 1 of the Code or dismissed by the court under Article 434, Paragraph 1 of the Code.
Yes, far too many to list. Examples include:
- Broadening the grounds for retrial of payment orders that became final before the amendment took effect (Article 4-4 of the Enforcement Act of the Code of Civil Procedure).
- Replacing unlimited inheritance of debts (where heirs were liable for all of the deceased's debts) with inheritance limited to the value of the estate (Articles 1-1 to 1-3 of the Enforcement Act of the Part of Succession of the Civil Code).
- Making bigamous marriages void rather than voidable (Article 4-1 of the Enforcement Act of the Part of Family of the Civil Code).
- Replacing the joint property regime with the separate property regime as the marital property system (Article 6-1 of the Enforcement Act of the Part of Family of the Civil Code).
- Changing the deadline for an action to deny paternity from one year after learning of the child's birth to two years after learning that the child is not the husband's (Article 8-1 of the Enforcement Act of the Part of Family of the Civil Code).
About the Rehearing Procedure
- First and foremost, a defendant's right of access to the courts is protected by the Constitution and cannot be sacrificed because of caseload concerns.
- In fact, after J.Y. Interpretation No. 752 was issued, some lawyers asked their former clients whether they wished to seek a remedy again, and many said they had already served their sentences and did not want to pursue the matter further. The number of cases will not explode as officials fear.
- In addition, Article 7-11, Paragraph 3 requires petitioners to be represented by a lawyer. Lawyers will screen cases in advance and help judges narrow the issues in dispute, which can speed up proceedings considerably.
Petitioners may submit to the court the copies of the case files they obtained in earlier proceedings. Once a rehearing is granted, the matter will be decided according to the ordinary rules on the allocation of the burden of proof.
The protection of a person's right of access to the courts does not depend on whether they have finished serving their sentence. Treating people differently on that basis would lack any legitimate justification and would violate the principle of equality.