Effective today, September first, Taiwans code of criminal procedure underwent major changes which would effect any of you having the misfortune to be involved in a Taiwanese criminal case. I should have an article on the changes in a future edition of Topics magazine.
But the Cliff Notes version is this:
at trial, 3 judge panels rather than one
Taiwans first Evidence Code (modeled after the US Federal Rules of Evidence)
An exclusionary rule, again modeled after the American one, this is a rule which excludes from consideration evidence seized illegally
A Taiwanese (meaning screwed up) version of Miranda
An increased role for cross examination
There have also been major additions concerning search and seizure law
While the criminal law is usually of minimum interest to business owners or regular people who assume they will never find themselves in a criminal courtroom, changes in Taiwan’s criminal procedures may well affect business people and regular people more than they would in other countries. This is due to the fact that many cases which would be civil matters in the United States end up being criminal cases in Taiwan. Most IPR cases end up in criminal court as do many contract matters if one of the parties claims fraud and runs to the District Prosecutors office. Prosecutors have little charging discretion compared with the U.S and so if someone claims fraud then it ends up being a criminal matter. Even such mundane things as divorce, if divorce can ever be called mundane, could end up being a criminal matter if there are allegations of adultery. The presence of private criminal lawsuits which are criminal cases that are prosecuted by private individuals as opposed to being pursued by the Public Prosecutor, also serve to make the likelihood of a
Does the law stipulate that one of them has to be over 25 and has at least been out of his/her parent’s house and/or off the university campus at least once, not counting drives between the house and the campus?
Blueface 666’s tango diagram shows exactly how criminal justice reform is going in Taiwan. (in fact can I use that diagram, with credit to you, in a law review piece I am doing on Taiwan Retro-Reform?) I will caption the picture; Taiwan Retro-Reform Jive Shuffle drawn by Dr. Blueface.
As to HakkaSonic’s question, as I pointed out to the Judicial Yuan one time (I really did draw it out on a white board for the esteemed Justices) 3x0=0 or to put it in a word formula: three idiots making a decision is not better than one idiot making a decision (I did not say that at the presentation, the local creatures are timid and sensitive)
As to Sandman’s question—I think you know the answer to that. But I will quote my dear elder brother, who owns a computer network company in San Diego (with all the frustrations that brings), “there is only one way to do something right, but an infinite number of ways to fuck things up”.
Although as my older brother I don’t like him, he is wise.
In response to Sandman, in a country whose legal system is in the early stages of development and that is compelled to constantly amend its laws not just for the immediate betterment of its citizens but also to bring it more into compliance with international norms to satisfy the demands of outsiders, one would think that most legislative changes would be a step in the right direction, but I agree with Brian that that’s not always the case.
Another example would be the amendments to the Copyright Law that were passed a couple of months ago. The government trumpeted them as a great improvement because they increased fines and make optical media piracy a crime. But they failed to mention that the changes also decriminalized parallel imortation (importing copyrighted goods without the owner’s consent) and removed the lower limits on criminal sentences that had previously existed. Thus the government’s claim that the amendments are getting tough on infringement ring hollow and most copyright owners and foreign entities called the amendments a step backwards. :?
And to spell it out even further for those who are not tuned in to IPR issues and the judicial system here in Taiwan, the problem with eliminating minimum fines (which were already ridiculously low) is that judges here almost always reduce sentences to fines (when imprisonment is an option)… and now with no minimum fines, judges can (and likely will) impose ludicrously small fines on those convicted of copyright infringement.
Where is the deterrent? Infringers regard these small fines simply as a cost of doing business.
In order to get into the WTO, Taiwan was forced to amend many laws, including its IP laws. However, even after Taiwan had already amended many of its laws to become WTO compliant, the WTO still barred Taiwan admittance until a few years ago. Taiwan naturally, in many cases, held off on promulgating many of its amended laws until Taiwan was permitted entry into the WTO… why make concessions when you’re still going to be kept out?
However, some amended or new laws still haven’t yet been promulgated by Taiwan after its admittance to the WTO, as even now Taiwan is refused accession to some of the WTO committees. There was an article recently in the TT (I think) reporting that Taiwan has still not been allowed to sign the WTO’s Government Procurement Agreement, due to politics played by China. As a result, certain restrictions that are to be dropped with respect to foreign bidders in Taiwan (when Taiwan is permitted to sign onto the WTO’s Government Procurement Agreement) remain in place in Taiwan’s own GPA, as Taiwan is being kept out of fair bidding in foreign projects (at least as regards the WTO’s GPA.
I would agree, the WTO has been a huge catalyst for change. In addition to what Tigerman said, Taiwan has been forced to take many steps to privatize government monopolies, lift restrictions on various imports, reduce tariffs, allow for increased foreign investment in various industries and liberalize all areas of law, ranging from banking, insurance, capital markets and financial services, to the Company Law, Fair Trade Law and IP laws (copyright, trademark and patent laws). All of those areas are important, but IP seems to get a large share of the attention, particularly every spring when Taiwan’s government makes a big show of supposedly trying to crack down on infringement in order to remove itself from the US Trade Representative’s special 301 list of countries with IP infringement problems, but Taiwan rightfully finds itself on the list again year after year.
As in so many countries, globalization is forcing increased privatization, liberalization, transparency and a working justice system, though, as noted above, it’s a slow process that is delayed due to ignorance, incompetence and greed as well as mere cultural differences. Those standing in the way of the changes either don’t understand that by dragging their feet they are holding up foreign investment and trade that would boost Taiwan’s economy, or they just don’t care for whatever selfish personal reasons they may have.
Changing laws and enforcing them are two different things. I’m sure there are laws against scooter pollution, counterfeiting, etc. but what matters is implementation.
Yes, but even when implemented (enforced), where the penalties are so light, there is no deterrent effect to the enforcement. That is a problem often in IPR cases in Taiwan.
In fact, it’s worse, because the taxpayers have to pay the salary of all three. But I wouldn’t characterize judges in Taiwan as “idiots.”[/quote]
No, certainly not all of them. But even of those who are not idiots, too many have little or no life experience, and from that standpoint are not qualified, IMO, to sit as judges.
In fact, it’s worse, because the taxpayers have to pay the salary of all three. But I wouldn’t characterize judges in Taiwan as “idiots.”[/quote]
No, certainly not all of them. But even of those who are not idiots, too many have little or no life experience, and from that standpoint are not qualified, IMO, to sit as judges.[/quote]
If they specialized in areas such as counterfeiting, the impact of this lack of life experience could be somewhat overcome, but all too often judges rotate, so that they end up trying cases from vastly different areas.
In fact, it’s worse, because the taxpayers have to pay the salary of all three. But I wouldn’t characterize judges in Taiwan as “idiots.”[/quote]
No, certainly not all of them. But even of those who are not idiots, too many have little or no life experience, and from that standpoint are not qualified, IMO, to sit as judges.[/quote]
If they specialized in areas such as counterfeiting, the impact of this lack of life experience could be somewhat overcome, but all too often judges rotate, so that they end up trying cases from vastly different areas.[/quote]
Yes. Judge rotation is a serious problem, IMO.
Judges in Taiwan are frequently rotated from one case to another, while the case is still being tried! You can imagine the dificculty we have explaining that this is a normal, routine procedure in Taiwan and that it has usually nothing to do with the particular judge’s handling of a particular case. This adds up to a waste of time, as we then need to familiarize the new judge with the case, and additioanal costs to the client, as familiarizing the new judge requires lots more in the way of billable attorney hours.
In fact, it’s worse, because the taxpayers have to pay the salary of all three. But I wouldn’t characterize judges in Taiwan as “idiots.”[/quote]
No, certainly not all of them. But even of those who are not idiots, too many have little or no life experience, and from that standpoint are not qualified, IMO, to sit as judges.[/quote]
If they specialized in areas such as counterfeiting, the impact of this lack of life experience could be somewhat overcome, but all too often judges rotate, so that they end up trying cases from vastly different areas.[/quote]
Yes. Judge rotation is a serious problem, IMO.
Judges in Taiwan are frequently rotated from one case to another, while the case is still being tried! You can imagine the dificculty we have explaining that this is a normal, routine procedure in Taiwan and that it has usually nothing to do with the particular judge’s handling of a particular case. This adds up to a waste of time, as we then need to familiarize the new judge with the case, and additioanal costs to the client, as familiarizing the new judge requires lots more in the way of billable attorney hours.
Ridiculous.[/quote]
Especially in cases where time matters. By the time, they nail that guy making fake Windows98, it’s 2008.
Generally the Taiwan judges can be tactfully led through to an international-quality decision in IPR cases, although it is extraordinarily expensive for rights holders to educate judges on a one-on-one (now one-on-three!) basis when the Judicial Yuan should be handling that. The “Chinese/Taiwanese” nature of the judges comes out in their desperation to “do the right thing” and avoid embarrassing themselves, and so if one can point to an international-quality solution for the legal problem in a case, they are often very happy to apply it. (“Oh, you should definitely try this! It’s the latest fashion in Milan!”)
