Research on Legal System of Judicial Ethics Regulations
Date Issued
2012
Date
2012
Author(s)
Chen, Li-Fen
Abstract
The question of whether a judicial system will work smoothly depends greatly on the quality of its participants: the judges, prosecutors, and the attorneys. For this reason, post-WWII Japan referred to the above three participants as the “three arms of justice”. The demand for legal ethics originated from mala fide acts committed by legal professionals that violated the nature of their public service. Due to the special nature of a judge’s role, the professional ethics of a judge place particular emphasis on the requirements of independence and fairness.
Many factors detrimentally affect the independent decision-making of a judge; amongst them, “corruption” is a concept that has been widely applied in recent years. The author of this thesis considers that the definition and forms of judicial corruption cannot be determined purely from the perspective of whether a crime has been committed. The concept of “judicial corruption” should include any abuse of power or improper act that seeks to derive a personal, illegal gain in any form for the judge him/herself or any other person, that departs from the ideas of judicial fairness and results in a detrimental effect on the judicial system. The provisions of the “United Nations Convention Against Corruption” (UNCAC) demonstrate that the formulation of codes of conduct governing personnel of judicial authorities is not only a feasible means of solving judicial corruption, but is also an international obligation placed upon all member countries by the contemporary international community.
According to the “2010/2011 Global Corruption Barometer” released by Transparency International, 42% of the Taiwanese public believe that corruption is most serious amongst the judicial authorities, in comparison to the other departments being evaluated. By examining the cases of affirmed disciplinary action against judges from the period of 1992 to June 2011, the author of this thesis has found that the types of violations committed by judges are mostly negligence, laziness, and lack of proper care in investigations, followed by inappropriate social relationships and financial management. There were also a number of judges who were suspended or permanently dismissed, due to their having severely damaged the fair and honest image of a judge. Therefore, it is indeed necessary for Taiwan to work towards formulating an enforceable code of conduct governing judicial authority personnel, and to implement such code.
Presently there are two different international trends in the development of a judges’ code of ethics: one is the mandatory demand for compliance through sanctions; the other is voluntary compliance by judges based on their internally held beliefs. Under Taiwan’s Judges Act, the Judicial Yuan was authorized to issue the Code of Conduct for Judges, after seeking the opinion of the national judges’ representatives, and judges are mandatorily required to comply with this Code. A serious violation of the Code will result in an evaluation; disciplinary action will be imposed under several circumstances if necessary. This shows that Taiwan has followed the first trend. Based on past experience, it is indeed necessary to formulate a judicial conduct code and to equip it with mandatory effect. However, there is also another serious and important issue of how to strike a balance between a code of conduct for judges, and the fundamental rights of judges.
The United States was the first country to impose a code of judicial conduct, which is also the most comprehensive. In Asia, Japan and Hong Kong have also been considered to demonstrate relatively high degrees of judicial honesty. This thesis seeks to examine the Code of Conduct for Judges of Taiwan by studying and comparing the codes of judicial conduct of the United States, Japan and Hong Kong, as well as their records of violations, from the perspectives of the fundamental principles of such codes, the carrying out of judicial powers and duties, and activities outside the scope of duties. It is hoped that such a study will uncover and supplement any uncertainties or inadequacies in Taiwan’s existing Code of Conduct for Judges, so that it may serve as a basis for future interpretation of uncertainties, and as a reference for legal amendment by the relevant authorities.
Subjects
legal ethics
judicial ethics
code of judicial conduct
judicial independence
judicial corruption
Bangalore Principles of Judicial Conduct
Model Code of Judicial Conduct
Guide to Judicial Conduct
SDGs
Type
thesis
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