The Research on the System of Setting for Trial in Our Nation
Date Issued
2006
Date
2006
Author(s)
Li, Ching-Lung
DOI
zh-TW
Abstract
English Summary
The motivation of writing this thesis is because many appealing cases for setting for trial managed by the writer are rejected. However, the persons involved are not convinced. This arouses the writer to probe into the depths of this system, including the process of its legislation, and the law-making and practical operation in foreign cases and the effect of domestic operation. As the research turns out, the persons who are not convinced have accepted it utterly. This proves that “The stones of those hills may be used to polish gems”. The thesis is divided into eight chapters. The first chapter mainly elucidates and summarizes the motive, goal, ways, method and range of the thesis’ research. In Chapter Two, the focus is put on the significance of setting for trial, theoretical basis, and function of procedures. Besides explaining the basic concept of setting for trial, an argument integrated by Germany, Japan and our theory is brought forth based on the legal trait for the system of setting for trial. In addition, a lawsuit in terms of constitution to defend the dignity of humanity serves as a perspective to explore the ground of theory of setting for trial. Then it further discusses the function of procedures of setting for trial in the hope to familiarize us with it. Next in Chapter Three, it discusses the legislative process of our nation’s setting for trial, including the legislative background at an initial stage—that is, our society does not have a long-term trust for justice in general; a civil call for reform in justice is continuous, resulting in the convention of a national meeting for reforming justice. This especially refers to the prosecutors’ abuse of uncharged staff’s rights to outer supervisory mechanism. Originally, it is suggested that Japan’s Examining Committee be introduced. However, the consensus fails to be reached in the final decision of National conference for reforming justice, followed by the Ministry of Justice’s offering to usher in the examining system from the courts of Germany and Japan. The Legislative Yuan passes it by Three Reading shortly after it, and changes to adopt Japan’s quasi-institution of a public action as well as Germany’s compulsory prosecution system. It also passes establishing a system for setting for trial. In the chapter, there is an introduction for the initial and final stage of the whole legislative process at that time. Moreover, in Chapter Four, which is based on the belief “The stones of those hills may be used to polish gems”, a further introduction is made from a comparison perspective regarding our emulation of Japan and Germany’s setting for trial. And it also introduces U.S. Grand Jury and Japan’s Examining Committee. As the research turns out, our nation indeed adopts a system that is appropriate to our country. Chapter Five discusses the practical working of this system in our nation. Because setting for trial is our new system, it is necessary to introduce its operation further. During our discussion, we may find out the problem of its operation. Currently, our nation’s operation is based on Judicial Yuan’s Meeting on February 7 , 2002 for the nationwide court’s chief and Forum on judicial business, as well as Taiwan’s Superior Court’s criminal chief judge’s decision on April 25, 2002, and also Ministry of Justice’s No. 910800949 attached letter of March 7, 2002—A reference principle for prosecutors’ institution to manage affairs corresponding to the modification of partial criminal litigation act. Currently, the entire operation of setting for trial goes smoothly. The most important part is Chapter Six, whose point of view is from the aspect of practical operation. And it amasses the information about the decision of setting for trial from twenty-one local courts nationwide. This chapter will explore the effect of its concrete operation and analyze it synthetically with statistics. The analysis turns out that there are 19 cases out of 3052 appealing cases nationwide that are allowed for setting for trial, which takes up 0.62 percentage. However, compared to the effect of Germany and Japan’s practical operation, they do not have a high ratifying rate in practical operation. Furthermore, in Chapter Seven, the thesis elaborates on the theoretical deficiency in our current system of setting for trial and our nation’s predicament in practical operation. There are fifteen questions raised in total that are desperate to be examined and compared with the instances of lawmaking in Germany and Japan for comparative observation. Finally, Chpater Eight summarizes the advantages and disadvantages about the system of setting for trial. It attempts to offer a possible strategy for modifying law in the future, allowing the victims’ dignity and benefits to be fully respected and protected during a criminal litigation as well as enhancing their status in criminal lawsuit. This may prevent those perpetrators from escaping luckily and allow the country to fairly execute its penal rights by punishing those who break our social order.
Key Words:
Court’s Examining System, Compulsory Prosecution, Quasi-institution of a public action, Grand Jury, Examination Committee, Human Dignity, Fake Property Crime.
Subjects
Court’s Examining System, Compulsory Prosecution, Quasi-institution of a public action, Grand Jury, Examination Committee, Human Dignity, Fake Property Crime.
SDGs
Type
thesis
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