Judicial Reform in Taiwan

Democratization and the Diffusion of Law

Neil Chisholm

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9781135008284
• Edition: 1
• Topic: Social Sciences
• Subtopic: Regional Studies
• Index: Social Sciences

This book examines Taiwan's judicial reform process, which began three years after the 1996 transition to democracy, in 1999, when Taiwanese legal and political leaders began discussing how to reform Taiwan's judicial system to meet the needs of the new social and political conditions. Covering different areas of the law in a comprehensive way, the book considers, for each legal area, problems related to rights and democracy in that field, the debates over reform, how foreign systems inspired reform proposals, the political process of change, and the substantive legal changes that ultimately emerged. The book also sets Taiwan's legal reforms in their historical and comparative context, and discusses how the reform process continues to evolve.

Part I

Taiwan’s judicial reforms in comparative and historical context

1 Taiwan’s judicial reform process

East Asian context, democratization, and diffusion

Neil Chisholm

Introduction

In 1999, a gathering of Taiwan’s legal elites and civil society agreed to enact sweeping changes to the island’s legal institutions. Wide-ranging judicial reforms were proposed to the ways citizens engage in civil litigation, challenge executive decisions in administrative court, how authorities prosecute crime, the nature and functions of the Judicial Yuan, judicial independence, and quality control of judges. On the surface, the main motivations for the reforms were, foremost, the restoration of collapsing public trust in the judiciary as well as enhancing its efficiency. Behind the key issue of public confidence, however, were Taiwan’s democratization and its aftermath. Many reform proposals aimed at rebalancing the power of the people vis-à-vis the government in favor of the citizenry. Empowered citizens and ex-dissident elites sought to infuse a democratic ethos into tarnished judicial institutions inherited from the authoritarian past.

Taiwan’s legal system derives not only from the Republic of China’s modernization efforts on the mainland in the early twentieth century, but the Japanese and German laws that inspired them and have continued to inform legal development in Taiwan. Judicial reform discussions have often implicitly questioned the legitimacy of Taiwan’s Continental legal tradition. In many fields of reform, debates between reformists and traditionalists have involved a contest of comparative law – whether to maintain continuity with the civil law tradition, or depart from it by adopting Anglo-American legal ideas. Roughly speaking, traditionalists have usually advocated solving local problems by keeping with the civilian spirit of Taiwanese law, while reformists have often proposed the radical medicine of common law solutions.¹ Comparative law analyses have thus shaped judicial reform discourse and motivated participants’ proposals.

Meanwhile, as Taiwan debated reforming its judiciary, Japan and South Korea initiated judicial reform processes of their own. These judicial reforms were noteworthy not only for their parallels to Taiwan’s process, but also because these jurisdictions of shared legal heritage each undertook systemic reform at roughly the same times. Japan and the two systems it has significantly influenced seemed to simultaneously declare their dissatisfaction with their legal traditions and adjusted them, often by adopting American ideas. Moreover, as the three jurisdictions’ judicial reforms progressed, developments in Korea and Japan began to exercise an influence on Taiwan’s more slow-moving process, especially in the discussions over adopting a type of jury system. Analyzing Taiwan’s judicial reforms in East Asian comparative context can uncover such regional borrowing, highlight similarities that suggest common root causes and factors in reform, and also reveal divergences that indicate local particularities as well as offer benchmarks for assessing progress or success.

Taiwan’s judicial reform process has attracted too little attention, given its importance as a case study of the legal dimension of democratization as well as of the transnational diffusion of law. This book’s aim is to publicize Taiwan’s remarkable story of judicial reform. While subsequent chapters examine specific fields of reform, this chapter introduces the overall judicial reform process. First, it outlines the main features of judicial reform in Japan, Korea, and Taiwan. Second, based on interviews, it offers a detailed analysis of how Taiwan’s 1999 National Judicial Reform Conference was initiated, summarizes its results, and explains how the process then stretched out for years afterwards. Third, the chapter analyzes Taiwan’s judicial reforms from the thematic perspectives of East Asian context, democratization, and legal diffusion. Fourth, the book’s chapters on specific areas of reform are summarized.

Judicial reform in Japan, Korea, and Taiwan: a (legal) family affair

Judicial reform in Taiwan has occurred at a time of similar systemic reforms in its most closely related jurisdictions. Taiwan is twice the legal offspring of Japan: first, the Japanese Empire’s law was administered during the 1895–1945 colonization period, and second, after World War II Taiwan received the Republic of China’s (ROC) Japanese-influenced legal system. The similarity of the two legal regimes allowed for a smooth transition, in the legal sphere, to ROC rule in 1945.² Modern Japan’s legal system, formed after the 1868 Meiji Restoration, followed the Continental European style, with a particularly strong influence from the German Empire. The unification of Germany in 1871 led to a period of intense, contemplative legislative activity aimed at unification of state-level legal systems. The laws and institutions that emerged were seen in Japan, and much of the world, as modern, enlightened, and attractive. For example, Germany’s 1877 Courts Constitution Act (Gerichtsverfassungsgesetz) was essentially adopted by Japan in 1890 (Saibansho kōsei hō, 裁判所構成法).³ The same was true for the codes of criminal and civil procedure. Japan’s translation of these codes linguistically, and culturally into Asian context, made them accessible and desirable to ROC legal reformers. Korea also experienced the transplantation of Japanese-style civil law during its 1910–45 colonization. And after liberation, South Korea effectively maintained Japanese-style procedural laws and judicial institutions.⁴

Thus, by the end of World War II, an unspoken legal familial relationship existed among Japan, Korea, and Taiwan. The three jurisdictions had court systems substantially influenced by German law. In the decades following the War, some in these places continued to look to Germany for legal inspiration. For example, aspiring legal scholars in these jurisdictions have often traveled to Germany to obtain law doctorates, a practice facilitated by the low cost of higher education there. Moreover, in South Korea and Taiwan, jurists would often pay close attention to Japanese laws, court decisions, regulations, and legal scholarship, as they sought to emulate its successful economic development.

However, the end of World War II brought an American military occupation to Japan that engaged in systemic legal reform, imparting US influences to Japanese institutions and procedural codes. Korea and Taiwan did not experience such an enforced Americanizing reform of their prewar legal system.⁵ Therefore, while the postwar procedural laws of Japan moved closer to the American style, those of South Korea and Taiwan maintained relative continuity with their illiberal prewar legal inheritance, which suited the authoritarian governments in the two places. This general point is crucial for understanding the later East Asian judicial reforms.

By the 1990s, there were drives for judicial reform in all three jurisdictions. Why was this? In Japan, the precise motivations for the emergence of judicial reform are still mysterious, but they seemed to be designed to “reinvigorate” the country, as one senior Japanese law professor told the author in 2014. What is clear is that a longstanding “administrative reform” political discourse, on streamlining bureaucracy, merged with a push by the Japan Business Federation (Keidanren, 日本経済団体連合会), an influential business lobbying association, to overhaul the judicial system. It is unknown why Keidanren agitated for judicial reform, but Setsuo Miyazawa has theorized that, because of the prolonged economic slump, big business sought to change the nation’s economic paradigm. It wanted to reduce the traditionally powerful bureaucracy’s role in the economy, as well as its costly maintenance, and instead switch to a more market-oriented economic model in which the legal system would play a greater role.⁶ As he put it, “because deregulation will reduce government intervention in many aspects of life, the public should be given better access to the judicial system and legal profession to ensure their protection.”⁷

The government heeded Keidanren’s call for reform and created the Justice System Reform Council (JSRC, 司法制度改革審議会) to discuss and propose fundamental reforms to the country’s postwar judicial configuration. Almost unexpectedly, reform-minded groups were invited to provide input into a process they were not mainly responsible for initiating. The Committee was designed to deliberate over transformative ideas outside of the ordinary legislative process and in such a way that the judicial establishment (i.e., the Ministry of Justice and Supreme Court) could not easily block reform. The Committee was composed of 13 members, six from legal fields (three law professors and one representative each for the courts, Ministry of Justice, and bar), and the rest came from other areas of civil society. The Committee’s structure gave an opportunity for reformists (i.e., typically from legal academia and the Japanese Federation of Bar Associations) to negotiate with traditionalists in a forum in which the latter were not in full control, as they normally were.

The JSRC started deliberations in July 27, 1999 and presented its final recommendations to the Prime Minister on June 12, 2001.⁸ While the report made proposals across a variety of issues, the top three reforms were the expansion of the number of lawyers, the establishment of an American-style law school system, and the creation of a lay participation system. The first two proposals related to the perceived problem of limited access to justice on account of there being too few lawyers in society. The law school reform was designed to train a greater number of lawyers and improve their quality by providing superior education, compared to the old system. Prewar Japan had followed the German Staatsexamen and Referendariat systems, under which aspiring jurists would be qualified by examination and undertake rotating internships within the judiciary, with passers classified into judges, prosecutors, and lawyers based on their examination scores. After World War II, Japan retained the “judicial examination” system, but transformed the Referendar internship into the Legal Training and Research Institute (LTRI), a Supreme Court-operated school for exam passers. By the 1990s, reformists had come to believe that the jurists produced by the LTRI and examination-centric education system were too narrow-minded and too few in number. Their solution was the importation of American-style, graduate-level legal education and a modified examination with a higher pass rate.

The third key reform involved adoption of a German-style lay participation system in which ordinary citizens deliberate and vote with judges in certain criminal trials. A unique feature is that the lay judges’ finding of guilt can be ignored if all professional judges are united in disagreement with the finding made by the lay judges. This reform did not address any widely perceived problem, but rather aimed to resolve a vague sense of public detachment from the legal system by introducing civic involvement in the courts.⁹ One of the JSRC’s objectives was to shift the postwar national paradigm from reliance on administrative guidance to the rule of law.¹⁰ This entailed, in the JSRC’s words, encouraging individuals to “grow out of the sense of being a governed object and … participate in making a free and fair society in mutual cooperation as an autonomous governing subject with social responsibility in hand.”¹¹

After the JSRC proposed these three reforms, and a number of other important reforms that cannot be considered in this space, the task of drafting laws to implement the JSRC’s proposals was left to a special “Promotion Office” under the Prime Minister, rather than the ordinary political process, to protect reform from dilution.

In Korea, pressure for judicial reform had been building since the 1988 democratization. In 1995, the Globalization Promotion Committee (세계화추진위원 회/世界化推進委員會), created by President Kim Young-Sam,...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• Notes on contributors
• Foreword
• Preface
• Part I Taiwan’s judicial reforms in comparative and historical context
• Part II Institutional transformations
• Part III The procedural revolution
• Afterword: President Tsai’s 2017 National Conference on Judicial Reform
• Index