Date of Award

4-2005

Degree Type

Dissertation

Degree Name

Doctor of Law (SJD)

Department

Law

First Advisor

Professor Dr. Sompong Sucharitkul

Second Advisor

Professor Dr. Christian N. Okeke

Third Advisor

Professor Myron Moskovitz

Abstract

Over the past decades, the ROC criminal justice system has long been criticized for its insufficient human rights protection, especially for the alleged criminal offenders. From 1947 to 1987, the ROC enforced martial law and was in a state of siege. In this era of martial law rule, ordinary citizens in the ROC jurisdiction lived for four decades with little anticipation of any recognition of their inherent human rights, not to mention the rights of the accused. To some extent, it was considered a privilege for an ordinary citizen to claim any right to an impartial trial. The guarantee of due process in the criminal justice system, which is today widely perceived as essential to civil rights in any modem democracy, was virtually non-existent in any ordinary criminal proceeding in Taiwan.

Following the development of democratic institutions which began in 1987, with numerous interpretative pronouncements of the ROC Grand Justice Council as well as extensive knowledge accumulated from the introduction and comparison of various modem foreign criminal justice systems (such as the United States, Japan and Germany) , the people of Taiwan started to review their legal system. They gave particular focus to its criminal justice system which influenced the daily life of the people most. They gradually reached the conclusion that the 1967 ROC Criminal Procedure Code, based mainly on the continental German system, was clearly out of date.

From the viewpoint of comparative legal study, the recent ROC legislation which might reshape its criminal procedure has given rise to a controversy regarding whether the new ROC criminal justice system retains its "Inquisitorial Tradition" or has it become "Accusatorial." The ROC Judicial Yuan and the Judicial Subcommittee of the ROC Legislative Yuan both declared in the 2003 Advisory Note that these newly enacted articles of the ROC Criminal Procedure Code are based on the so-called "Improved-Accusatorial Principle" that is similar to Italy. However, what this "Improved-Accusatorial Principle" actually contains remains unclear and needs to be disclosed, identified and defined in the near future.

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