** New ** Desired legal actions in Taiwan

Legal General Legal Matters
1

I realize that a lot of people read these forums, and not all are professional legal people . . . . . . however, this is sort of a professional legal question . . . . .

What types of “actions” or “procedures” would you like to see introduced into the court system here, and which you feel would better protect the rights of all people in Taiwan?

I mentioned this question to one legal scholar of my acquaintance, and he suggested “writ of mandamus”. Basically, that is a court order which orders a government department to do their duty . . . . I agree that no such procedure appears to exist in the Taiwan government hierarchy to facilitate such a procedure . . . . . which is to say “ENFORCE THE LAW.”

(writ of mandamus: an order commanding a lower court or an officer or agency of the government to perform a duty required of them by law or custom or reason)

I would be interested in other serious suggestions as well . . . .

2

The court system is separate from the police system. As one legal officer told me, if the court says something, it’s hard to make the police do it.

For example, even though I have a court order saying that I have the right to see my son, the police don’t have to do anything and they won’t. If I go to court about my ex-wife stopping me from seeing my son, the court can render a decision in my favor regarding my right to see my son, but that doesn’t mean that the police have to do anything about it.

The irony of the decision is that they want me to pay child support because my son is sueing me. They will file against any property or money that I have and try to take it. As I told the judge, the court is useless. :x

3

cipos raises an excellent point.

I am sure that Hartzell would be interested in comparative statements about how such situations would be handled in the USA, and then (by comparison) what sort of new procedures are needed in Taiwan to insure that the parent (in this particular situation) attains his/her legal rights . . . . . . (for visitation or whatever . . . . . )

4

Or in other countries, thank you. There are plenty of other places with legal systems that most people are perfectly happy with, and many of them look at the USA with some amazement.

5

I’d like to see the introduction of “discovery procedures” into civil proceedings. While time-consuming and costly, the discovery process is an extremely important and useful part of civil litigation in the US (sorry strag, I don’t know how litigation works in other countries).

Through discovery, lawyers submit requests for info or documents back and forth, or take depositions of parties or witnesses, without the involvement of the judge (except in case of dispute) so both sides will have a reasonable opportunity to discover the relevant evidence and examine the credibility of witnesses prior to trial. The process results in the great majority of cases being settled before trial and those cases that go to trial should have more-informed lawyers and judges than if there were no discovery process. Taiwan’s system, as I understand it, allows for much more limited discovery. In effect, the lawyers have to relay any discovery requests through the judge who may or may not make the other side comply. Not only is that system more burdensome and limited, but I believe lawyers here don’t fully appreciate the importance of obtaining evidence through discovery anyway, so they’ll make up theories and arguments based on limited evidence, and the lawyers and judges remain fairly uninformed of the facts even at trial.

I believe some movement has been made to broaden the discovery process and rights in Taiwan, but surely such movement is/has been way too limited and too slow. Greater discovery procedures are needed.

Criminal evidence seized through illegal means should be inadmissible in court here as it is in the US. Such a rule provides strong incentive for cops and prosecutors to obey the law and protects the privacy rights to which citizens are entitled. It is my understanding that “fruit of the poisonous tree” (to use a common legal phrase) is admissible in court here – that one may be prosecuted based on illegally seized evidence. That’s just wrong.

6

MT,

What of the case of a vile criminal walking on an evidentiary technicality though? I’ve often thought the more common sensical solution in the U.S. would be to prosecute the criminal and the cop. That would have the desired effect of enforcing proper rules of police procedure without allowing dangerous persons to go free when clear evidence of a capital crime exists.

7

One man’s technicality is another man’s egregious violation of civil rights. The fourth amendment to the US constitution assures citizens the right to be free from unreasonable searches and seizures. If the cops have a warrant to search my garage for a dead body, but they search my bedroom and find a pot plant, that’s an unreasonable search and I don’t believe the plant should support a criminal action against me. I don’t give a damn about how the cop is disciplined. I want my rights to be protected.

True, sometimes it works the other way. Sometimes they’re looking for the pot plant and they find the dead body, but the principle’s the same. People don’t have a right to free from unreasonable searches and seizures if evidence seized in such searches is admissible against them.

8

habeas drinkus
specific gravity
grand marinier
decree absolut
estipple
feel only man’s daughter
cava e temptor
Me Randy Rights

(should I stop now?)

9

MT,

What if a police officer enters a home illegally to conduct a search and finds the occupant in the process of killing someone? The officer has no right to be in the house so presumably everything he does from then on is tainted and inadmissible, including arresting the attempted murderer and witnessing the crime, on the basis of an absolute right to be free from illegal searches no matter what the consequences.

10

See Federal Rules of Procedure at
lawsonline.com/directories_info/fedrules.htm

11

I would agree with MT that more in the way of discovery would be helpful.

I’d like to see the requirement for Judicial Assistance as it relates to the service of process on Taiwanese defendants and ultimately on the enforcability of foreign judgments in Taiwan relaxed, if not abolished.

I’d like to see the Taiwan courts accept a single power of attorney from a party that has retained counsel for a matter, rather than being forced to submit a new POA at every step of the way, from the investigation stage through the courts. Its absolutely ridiculous that the courts do not trust attorneys here.

12

If one were to be drafting an organization law for a new type of court in Taiwan, how would one implement tigerman’s suggestions?

I assume that this would be implemented by stating that US Federal Rules of Procedure and Evidence do apply. Is this adequate? See my sample conceptualization of “jurisdiction” below –

[b]ARTICLE 3
Jurisdiction

  1. The Court shall have original jurisdiction to hear and decide any criminal, civil, or administrative case arising under any legislation in effect in Taiwan when the circumstances of the case have a necessary or significant connection to Taiwan and one of the following conditions is met:
    (a) the case involves a United States citizen,
    (b) the case involves Military, Naval, or Air Force personnel of the Armed Forces of the United States,
    (c) the case involves a foreign national whose government has obtained the approval of the Chief of Mission and the United States Secretary of State for its nationals in Taiwan to be eligible for hearings before the Court,
    (d) the case meets other appropriate criteria as specified by the United States Secretary of Defense.
  2. In regard to criminal cases, Military, Naval, or Air Force personnel of the Armed Forces of the United States shall not be brought to trial for any offense in or be subject to the powers of the Court except upon the approval of the Secretary of the Army, Navy, or Air Force.
  3. The Court shall have jurisdiction over other cases according to the provisions of Articles 9 and 10.
  4. The Court may impose any penalty which is authorized by any law under which the accused is convicted. In addition to or in lieu of any power of sentence herein authorized, the Court shall make such order as is authorized by law:
    (a) concerning any property or business involved in an offense; or
    (b) concerning the person of the accused; or
    (c) other matters according to the legislation in effect in Taiwan.
  5. Subject to the provisions of the preceding paragraphs of this Article, any United States Judge for Taiwan shall have power to administer oaths, to punish for contempt of court (whether or not committed in their presence), to compel the attendance of witnesses and order their detention, to compel the production of documents, to take depositions and to issue commissions for the taking thereof, to issue warrants of arrest and for search and seizure, to admit to bail, to commit for trial, to establish consistently with applicable legislation rules of practice and proceedings, and to exercise all other powers incidental to the performance of the Court. US Federal Rules of Procedure and Evidence shall apply.
  6. A record shall be made and kept of all proceedings before the Court. Findings of fact and conclusions of law shall be made in all cases decided by the Court except in criminal cases in which a plea of guilty has been accepted.
  7. The Court shall have the power to modify or amend its findings, sentence, or judgment, and to order a new trial if required in the interest of justice. A motion for a new trial based on the grounds of newly-discovered evidence shall be made not later than two years after final judgment. A motion for a new trial based on any other grounds shall be made within twenty days after delivery of judgment or within such further time as the Court may fix during the twenty-day period. The Court may correct an illegal sentence at any time and may reduce a sentence within sixty days after sentence is imposed. Clerical mistakes in judgments, orders or other parts of a record and errors in the record arising from oversight or omission may be corrected by the Court at any time and after such notice, if any, as the Court orders.
  8. The Court shall have the power to issue habeas corpus, mandamus, and other prerogative writs, to issue injunctions, and to conduct pre-trial arbitration.
  9. Subject to the provisions of the preceding paragraphs of this Article, the Chief of Mission may empower officials other than United States Judges for Taiwan to issue warrants of arrest, and for search and seizure, to compel the attendance of witnesses and the production of documents, to admit to bail (except in the case of murder), to prohibit departure from Taiwan, to administer oaths, and to commit for trial. [/b]

How would this be implemented?
If my theoretical draft organization law contained this article –

[b]ARTICLE 4
Process

  1. Process, which shall include summons, subpoena, notices, and other writs provided for issuance by the Court, shall be in such form as any United States Judge for Taiwan may prescribe.
  2. Process shall be effective throughout all states and territories of the United States of America, including Taiwan, as well as such areas as the United States Secretary of Defense shall designate.[/b]

Would this be adequate? What would tigerman add?

This point is well taken. In my conceptualization, believe this is a matter for the MOI to deal with. Local Taiwan “island citizens” can register a chop for use on official documents. USA citizens, and aliens, should be offered the same priviledge.

13

[quote=“Hartzell”]How would this be implemented?
If my theoretical draft organization law contained this article –

[b]ARTICLE 4
Process

  1. Process, which shall include summons, subpoena, notices, and other writs provided for issuance by the Court, shall be in such form as any United States Judge for Taiwan may prescribe.
  2. Process shall be effective throughout all states and territories of the United States of America, including Taiwan, as well as such areas as the United States Secretary of Defense shall designate.[/b]

Would this be adequate? What would tigerman add?[/quote]

My primary concern regarding this issue is that foreign plaintiffs suing Taiwanese defendants in a foreign court are often unaware of the difficulty they may encounter when they attempt to enforce their foreign judgment in the Taiwan courts.

Taiwan law stipulates that the failure to properly serve on the Taiwan defendant the documents necessary to commence the foreign litigation shall be a bar to the recognition and enforcement of a foreign default judgment by a Taiwan court.

There are only two ways that process can be properly served on a Taiwan defendant for foreign litigation… 1) the documents can be served on the person of the Taiwan defendant while the Taiwan defendant is physically present in the geographic area where the foreign court has jurisdiction, or 2) via Taiwan’s Judicial Assistance.

Judicial Assistance requires the foreign court seeking assistance to provide all of the process documents to the foreign nation’s representative office dealing with Taiwan (that would be AIT’s office in Washington, D.C. for an action in a US court) or embassy (if the nation has diplomatic relations with the ROC). The representative office or embassy then forwards the process documents to either TECO or the ROC embassy, which in turn forwards the same to the relevant Taiwan court, which then serves process on the Taiwan defendant in Taiwan.

When foreign attorneys contact Taiwan attorneys seeking assistance with process service on a Taiwan defendant in Taiwan, they are almost always unaware of the necessity to serve process through Taiwan’s Judicial Assistance. Taiwanese attorneys very frequently neglect to inform foreign attorneys that Judicial Assistance is required if the foreign plaintiff desires to enforce his foreign judgment in Taiwan. In my experience, the Taiwan attorneys are not neglecting to inform the foreign attorneys of this matter intentionally… they for some reason simply don’t seem to think of the problem. Instead, Taiwan attorneys simply advise the foreign attorney that service by an agent will satisfy the process requirements under Taiwan law… and this is correct… But, as stated above, if the foreign plaintiff subsequently seeks to enforce his foreign default judgment in a Taiwan court, the Taiwan court will refuse to recognize the foreign judgment because the process for commencing the foreign litigation was not served on the Taiwan defendant via Judicial Assistance. The foreign plaintiff is left scratching his head in disbelief, because the Taiwanese attorney who assisted in serving process on the Taiwan defendant advised that service by agent satisfied the requirements under Taiwan law… Oh, but that is for litigation in Taiwan… and most foreign courts only require that service of process on a foreign defendant comply with the local rules where the defendant resides and is served. Thus, while the Taiwan attorney did assist in properly serving the documents on the Taiwan defendant… he did so only sufficiently so that the foreign court could try the case, certain that the requirements for service of process were met in Taiwan. Foreign plaintiffs normally are not sufficiently knowledgable of Taiwan law to understand that for recognition of and enforcement of such foreign judgments, normal service will not suffice… Judicial Assistance is required for that.

I think that service of process on a Taiwanese defendant should be completed according to Taiwan’s local service rules, regardless of whether the Taiwan defendant is being sued in a Taiwan court or a foreign court. Thus, I believe that Taiwan’s Judicial Assistance should be abolished… at least as far as it being a requirement for subsequent enforcement of a foreign judgment in Taiwan.

14

In fact, I think the notion that Taiwan attorneys must submit a POA to the prosecutors / courts in Taiwan is ludicrous. That they need to submit a new POA for each and every step of the way is even more ridiculous.

I know of at least one local firm that has used a “registered” chop for foreign clients… but I really don’t like that either.

Attorneys are, as we say in the US, “officers of the Court”. In the US, no attorney would dare to bring a case on behalf of a client that had not authorized the attorney to do so. That attorney would be disbarred. But, in Taiwan, the courts (and the Taiwan attorneys) all defend this POA nonsense by asking, “how does the court know for certain that the client has entrusted the matter to the attorney?”.

I know that AmCham has wrestled with Taiwan’s various authorities on this matter for many years… and that Taiwan has given way somewhat. But I always thought that AmCham went about it the wrong way. AmCham was always seeking small incremental changes in the policy… and every time Taiwan agreed to such a change, AmCham would come back later with a new request/demand… and the Taiwanese officials would, quite understandably, IMO, shake their heads and wonder why we were still not satisfied. I think the thrust of the demand should have been that Taiwan stop requiring POAs from foreign plaintiffs and simply accept that the Taiwan attorney was/is being truthful in bringing the claim. If you argue for what you want from the start, the other side cannot later complain that it has already made concessions…

Requiring POAs, which usually must be notarized and legalized by TECO in the foreign plaintiff’s home nation, places an unnecessary burden on the plaintiff, IMO. I think there are only 4 or maybe 6 TECO offices in Canada… if you are a Canadian plaintiff you better hope you live near to one of these TECO offices. Moreover, for many actions, such as raids to obtain evidence of counterfeit goods, the requirement of obtaining a POA and having the same notarizd and legalized by a TECO office abroad can take too much time when fast action is essential to success.

15

[quote=“spook”]MT,

What if a police officer enters a home illegally to conduct a search and finds the occupant in the process of killing someone? The officer has no right to be in the house so presumably everything he does from then on is tainted and inadmissible, including arresting the attempted murderer and witnessing the crime, on the basis of an absolute right to be free from illegal searches no matter what the consequences.[/quote]

i don’t recall that this is the correct conclusion or interpretation of the 4th. and the right is not absolute nor “no matter what the consequences”.
very generally, evidence related to the search and seizure might encounter obstacles, but the portion where he witnessed a crime taking place is separate and not subject to the same scrutiny.

as for the original question, it would be nice if there was some stare decisis, but i realize this is a drastic change. still, it would be nice instead of calling up the ministry of something, being told A by official X, seeing B result in interpretation order Y, and seeing C in law Z, and then having to tell your client maybe yes, maybe no.
how about some nice organized evidentiary laws.
how about some cross-agency coordination (the bane of any bureaucracy. see court vs. police example above).
how about revamping the Taiwan Bar, maybe improving the way judges are trained (or not) and appointed/applied for.

16

Good point, Jack. Taiwan reports very few of its decisions, and of those reported, only a very few are deemed to be “precedent”.

More case reporting would be helpful. But, you’re correct… it would completely change legal research here.

17

So how exactly does it work in Taiwan, tigerman? The government annually publishes a book of selected opinions that carry some weight but are not actually binding precedent? Is that right? I read somewhere that there is such a publication, but I’ve never seen it as far as I’m aware and it really pisses me off that lawyers where I have worked never seem to refer to cases in that publication.

Reliance on judicial precedent, rather than interpreting laws differently in each case, makes so much sense that I cannot imagine why a legal system would exist without it. But this is Taiwan. . . (I know Taiwan’s system is supposedly modeled after the German system or the Japanese system, but that makes no difference to me – it seems illogical that the decision of a higher court would have no effect on a subsequent case in a lower court.)

My confusion on the subject is because, as is typical in Taiwan, one constantly hears directly contradictory versions. I’ve often heard it said that precedent counts for nothing in Taiwan. But then I learned of that book referred to above, which suggests that statement is untrue. So, I’ve come to the conclusion that in some limited cases precedent can matter but most local attorneys and judges don’t understand the concept and don’t know how to look up precedent or make arguments based on it, so in the end judicial decisions in Taiwan tend to be unpredictable and inconsistent. That’s my take, would you agree?

18

On the topic of Taiwanese precedent. Here is the deal on that; the first thing one needs to keep in mind is that the Taiwanese legal system is basically German. And German jurisprudence has some concepts that are completely alien to Anglo-American jurisprudence.

And one of them involves precedent. The German idea of precedent is that the higher court reported decisions are, the best word I can choose is: “advisory” with a lot of weight. Kind of like when your dad “advises” you to do something. They are to be given great respect but are not binding as Anglo American attorneys think of it.

Turning from theory to the practicalities in Taiwan. By black letter law in Taiwan, Supreme Court decisions are NOT binding on lower courts. This is in keeping with the German theory. But if a District Court judge fails to follow a clear precedent it is almost 100% certain that the High court will overturn the decision. Also given the fact that the Supreme Court routinely sends around a memo saying case A, B, or C should no longer be cited; that too indicates that they have a kind of de facto binding authority.

A very typical pattern in Taiwanese law is the law says X and the reality is the complete opposite, Not X.

Remember the most important book to read if one wants a knowledge of how Taiwan operates is Alice in Wonderland/Alice through the Looking Glass.

Brian

19

The material that had been here I found out was inaccurate so I deleated it.