（Wu Ching-chin is an associate professor, chair of Aletheia University’s law department and director of Taiwan Forever Association）
（作者為真理大學法律系副教授兼系主任、永社理事）
Translated by Tu Yu-an
TAIPEI TIMES / Editorials 2016.11.16
http://www.taipeitimes.com/News/editorials/archives/2016/11/16/2003659348
Right after visiting newly appointed Judicial Yuan President Hsu Tzong-li (許宗力), Minister of Justice Chiu Tai-san (邱太三) and Prosecutor-General Yen Ta-ho (顏大和) told a news conference that to promote transparency in third-instance trials, the Supreme Prosecutors’ Office would select cases in which it would recommend that the Supreme Court hear oral arguments. The question is why, when transparency is one of the most basic principles of criminal justice, problems still exist in this respect.
The Supreme Court rarely allows oral arguments in criminal cases. Article 389, Paragraph 1 of the Code of Criminal Procedure (刑事訴訟法) states that judgements in third-instance courts are in principle given without oral arguments, unless the court deems it necessary. The rationale for this is that third-instance trials are trials of law and, since Supreme Court judges are experts in applying the law, there is little need for oral arguments.
Such reasoning is highly problematic, because laws are written in natural language which is, to some degree, subjective. In addition, there is always more than one way to interpret the law, as some cases involve infinite possibilities that far exceed the limited scope of the law.
The idea that questions of law do not require argument is a myth. That is why the Supreme Court, after it abolished the secret allocation of cases to judges in 2012, announced that oral arguments would be applied in any third-instance trials of cases that involve important questions of legal principles.
This raises the issue of which cases involve important questions. At present, the Supreme Court allows oral arguments in cases involving the death penalty; as to other cases, it is up to judges to decide, and this can lead to arbitrariness. That is why the Supreme Prosecutors’ Office wants to establish a legal opinion research unit to select cases for third-instance trials and call for oral arguments to be heard.
Of all the ongoing cases at the Supreme Court, the one involving former Executive Yuan secretary-general Lin Yi-shih (林益世) has received the most attention due to its controversial nature. During the first trial, the court adopted the law’s narrow definition of corruption — that is, providing services directly related to one’s legally defined capacity as a public servant in exchange for personal gain — on which basis it did not find Lin guilty of violating the Anti-Corruption Act (貪污治罪條例).
However, in the second trial, the court adopted a different definition of corruption, extending it to include situations where public servants gain from providing a service by using their influence — a definition established in 2010 by the Supreme Court when it dealt with the corruption case against former president Chen Shui-bian (陳水扁).
As a result, the two judgements were very different, with the second one meting out a more severe punishment. The wide disparity between the two verdicts shows that the Lin case involves important questions of legal principles. The Supreme Court needs to hear oral arguments to clarify this issue and set down a unified legal interpretation to prevent different judges from meting out drastically different rulings in similar cases.
It is also important that the Supreme Court, after hearing the oral arguments, should reach its own verdict rather than handing the case back to a lower court. Otherwise, what would be the point of hearing an oral argument?
The legislature should also amend Article 389, Paragraph 1 of the Code of Criminal Procedure to make oral arguments the rule rather than the exception in third-instance trials.