1987 / 6月
Jackie Chen and Sophia Lin /tr. by Phil Newell
Lin Yang-kang has said, though reforming the Judicial Yuan is a complex task, its aspects can be placed in two categories: the first is "the system," and the second is "moral character." Reforming the former and improving the latter are closely interdependent jobs.
Right now there is a pressing reform proposal, designed to alleviate doubts raised about the question of "moral character," which would dramatically change the trial procedures of the ROC
In order to understand the crux of the new proposal, it is necessary to first look at the current procedures used in trials in the ROC The current process is known as the "direct trial." Under this system, a single judge has responsibility for hearing out the participants in the case (defendants, lawyers, prosecutors, witnesses, or plaintiffs), for seeking to determine the true facts of the case, and for deciding the final disposition of the case.
The advantage of this system is that, with a single judge supervising the entire case, the judge will be thoroughly familiar with both the evidence and the participants, and will be in a good position to make a clear judgment of their credibility.
The proposed new system would divide the fact-finding process from the final judgement. One judge would undertake the first task, and then a second, randomly chosen after the fact-finding process is complete, would review the evidence in the written record and reach a judgment on the same day.
The rationale behind this plan is that the participants in the trial would have no way of knowing from the fact- finding process which judge would determine the final disposition of the case until the day of the judgment itself. In this way, the opportunities for any of the participants in the case to attempt to inappropriately influence the judge would be minimized.
When the proposal became public, however, it created a stir in the legal community. A host of practical problems were raised: How could the second judge have enough time to thoroughly review, and then reach a thoughtful judgment on, a large amount of written evidence in the short space of a morning? How could the second judge determine the relative credibility of the participants in the case when he or she has lacked the opportunity to see or speak with them?
Although judges are the people most directly affected by this proposal, they have not publicly commented for fear that opposition to the proposal could be interpreted as an endorsement of judicial corruption.
To resolve this dilemma, Lin Yang-kang recently held an anonymous vote among the judges at all levels. The result showed that 90 percent of the 819 judges polled were opposed to the proposal.
That reforming the judiciary without consulting the judges' is no easy feat is shown by another pressing problem: that of suspended sentences. In the ROC, defendants without a previous criminal record or who have been clean for five years, and whose conviction calls for a sentence of less than two years, are eligible for a suspended sentence.
But, whereas in the U.S. and Japan the percentage of those eligible who actually receive suspended sentences is about sixty, in Taiwan the figure is only fourteen percent. This is because the judges are I concerned that people will speculate that I there has been some corruption or undue influence in cases where the judge awards only a suspended sentence.
Lin Yang-kang therefore on May 8th publicly announced that he would assume responsibility for any possible adverse consequences of liberalizing the use of the suspended sentence provisions, thus freeing the hands of the judges to implement the law as it was originally intended.
Besides these two issues, Lin Yang- kang is also facing the problem of over- worked judges and overcrowded court dockets. But just give him some time, and he will certainly give us something new and interesting to think about.