A Study on an Appeal to the Third Trial Instance for the Reason that the Judgment is Contrary to Law-With Focus on the Practice of Criminal Trial
Date Issued
2011
Date
2011
Author(s)
Lee, Ying-Yung
Abstract
Article 377 of the Code of Criminal Procedure provides, "An appeal maynot be ade to a court of the third instance except for the reason that the judgment is contrary to law." Since the Code of Criminal Procedure has imposed restrictions on grounds of filing appeals to third trial instance and the third instance is designed to be a de jure trial, how can there be ever-pending cases as to which multiple remands are ordered, hence inducing criticisms from all circles? Therefore, the study is centered on criminal trials with focus on an appeal to the third trial instance for the reason that the judgment is contrary to law and the various issues resulting therefrom.
At present, although the court of first instance has adopted a reformatory adversarial system, the courts of second and third instances have not revised their practice accordingly. The court of second instance still adopts a review system that repeats what is conducted in the first instance whereas the court of third instance does not a strictly de jure trial, hence resulting in a situation where questions of facts and laws are intertwined and the authorities of courts of second and third instances ambiguous. Accordingly, this study will set out by firstly probing into the structure of the R.O.C.’s system of trial hierarchy and the characteristics of the third trial instance, and will then explain the design of the system of trial hierarchy, the trial practices of the three-level courts and trials, and how the pyramided trial hierarchy may be formed in the future. Moreover, the meanings of de facto trials and de jure trials and their distinctions will be elaborated. The study will also dwell on the differences between the appeals to the third trial instance and to the second trial instance by explaining their characteristics, limitations on the grounds for appeals, as well as the scope of ex officio investigations. Furthermore, certain provisions of the Criminal Speedy Trial Act have been put into force. Article 8 of said Act limits the right of both public and private prosecutors to make appeals to the third trial instance whereas Article 9 thereof provides for strict de jure trials if the conditions of said Article 8 are met. As said Act clearly excludes the application of certain provisions of the Code of Criminal Procedure with respect to the appeals to the third trial instance, the influence on the existing state of making appeals to the third trial instance will also be studied. Secondly, the concept of judgments contrary to law will be reviewed from the standpoint of the hierarchy of laws, with the implications of hierarchy of laws being elaborated, the Constitution, laws, orders and other legal principles being sequentially reviewed, as well as the treatment of issues of unconstitutionality by the trial courts being studied. In addition, the judgments contrary to law will be analyzed by their types, with the meanings and types of judgments contrary to law being elaborated and the issues associated therewith being studied. Since this study is centered on the criminal trials, the flow path of the third trial instance and the adjudicative process should be studied and analyzed so as to offer opinions for improvements as to the existing trial practices. Furthermore, the laws and practices and the functions thereof are reviewed, with critical review being done from both aspects of the practices and the legal framework so as to proffer means of improvements.
It is through the findings of this study that opinions for improvements as to the judicial administration and trial practices with respect to criminal procedure will be proposed, and that the recommendations for amendments to Article 5 of the Constitutional Interpretation Procedure Act, Code of Criminal Procedure and other legal frameworks will be offered. The short-term objective is to help the court of second instance to avoid or reduce the situations where the judgments are contrary to law so as to reach adequate conclusion of the cases, hence achieving the goal of judicial economy. The mid- and long-term objective is to amend the relevant legal frameworks to thoroughly resolve the problem of ever-pending cases so that the expectations from all circles for fair and speedy trials will be met.
Subjects
Judgment Contrary to Law
Hierarchy of Laws
System of Trial Hierarchy
De Facto Trial
De Jure Trial
Ground for Appeal to Third Trial Instance
Judicial Review over Unconstitutionality
SDGs
Type
thesis
File(s)![Thumbnail Image]()
Loading...
Name
ntu-100-P92341018-1.pdf
Size
23.54 KB
Format
Adobe PDF
Checksum
(MD5):53602eddadbed2c09c2334d692a689c8