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" Article 370 of the Code of Criminal Procedure
The court of second instance may not pronounce a sentence heavier than the one in the original judgment for an appeal filed by a defendant or for interests of the defendant; provided that this rule does not apply if the judgment of the original court is set aside because of the law was wrongly applied."
Exactly
According to news reports, somehow this person’s sentence seems to have been increased on appeal:
https://tw.news.appledaily.com/local/realtime/20120726/134298
This links to a pasted copy of what appears to be the High Court Judgment in that case (so far I haven’t been able to see the increase in the text of the judgment, but I don’t know Chinese–for all I know, maybe the increase isn’t in there):
Is this Taiwanese Code of Criminal Procedure?
My old copy (that I have here at home) says the same thing.
Here’s a copy of the Code of Criminal Procedure online; it says “Old Version,” but I can’t see a new version on that site:
http://www.taiwanlii.ccu.edu.tw/keywordspicker/law_info.php?id=5
The above online version of Code of Criminal Procedure Article 370 says the same thing. Yet, in a case that has been discussed on this bulletin board, a sentence appears to have been increased on appeal.
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So if I am the one appealing I can ask for an increase?
Also, what are the chances of them winning an appeal and how long does it all take?
On Monday I have an appointment with a free lawyer so I will post whatever I learn afterwards here.
I’m not sure. I’m not well versed in the law here. I merely posted news reports that say a certain sentenced was increased. Here’s where that August 2012 discussion starts:
Yes, the best thing is to ask a lawyer.
Edited to add:
Here’s another, fairly recent one:
Hsiao Po-wen and Kuan-lin Liu, “High Court hikes jail time for defendants in police murder,” Focus Taiwan, December 28, 2017
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In that new, probably it was the boy´s family the one appealing…?
I could be wrong, but it’s my understanding that that was the defendant’s appeal.
I’ve edited my post that’s just above your post to add a fairly recent news report of sentences seemingly being increased on appeal.
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What a shitty conviction on the 2nd article. One dead police officer in the line of duty and the ring leader gets 10 years only, raised later to 13. No wonder why police officers are so useless here.
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I can’t account for that.
How can they give a life/dead sentence (rode it somewhere) for drug dealings but spare with 10 years the murderer of a police officer?
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its just smart, fight in a group and you are going to win. might be news to you but the people fighting here ain’t honorable types…
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Maybe I misunderstood. In the case of the gangsters and the murder of the police officer, I’m not sure who was appealing, but in Zain Dean’s case, I’m pretty sure Zain Dean was appealing.
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I’ve not checked the case, though, the law says “this rule does not apply if the judgment of the original court is set aside because of the law was wrongly applied.”
This was applied on that case?
That is upsetting tbh
I don’t know Chinese, so I don’t know whether that was why it was permissible to increase the sentence.
It seems the provisions by Article 59 of the Criminal Law could be misuse of the law. I hope the Google translation below is understandable. (It must be better than my English.)
最高法院106年度台上字第1999號判決
“犯罪在客觀上並無顯可憫恕之情狀，法院竟適用刑法第五十九條之規定而酌減其刑，即屬用法失當。”
" 原審認第一審適用刑法第五十九條酌減其刑之規定，減輕上訴人之刑責，有適用法條不當之情形，以之為由，撤銷第一審之科刑判決，改判諭知較重於第一審判決之刑度，已詳予敘明，尚難謂與刑法第五十九條及不利益變更禁止原則之旨意相違。"
The Supreme Court’s 2017 No. 1999 Judgment
There is no apparently forgiveness of the crime in the objective case. If the court applies the provisions of Article 59 of the Criminal Law and reduces its penalty, it is a misuse.
The original trial of the first trial applied the criminal law Article 59 to reduce the penalty provisions, reduce the appellant’s criminal responsibility, there are cases of improper application of the law, on the grounds, cancel the first instance of the sentence, change the judgment It is difficult to say that it is contrary to the purpose of Article 59 of the Criminal Law and the principle of prohibition of non-interest change.
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The English translation of Article 59 of the Criminal Code:
https://mojlaw.moj.gov.tw/LawContentE.aspx?LSID=FL001424
The Chinese:
https://mojlaw.moj.gov.tw/LawContentExtent.aspx?lsid=FL001424&LawNo=59
Thank you, tando!