Courts and judicial reform in taiwan: Gradual transformations towards the guardian of constitutionalism and rule of law

Wen-Chen Chang*

*Corresponding author for this work

Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review

2 Scopus citations

Abstract

Courts and legal institutions in Taiwan are modeled on a civil law system, a legacy of past imperial and colonial governance: first, by the Ch’ing Dynasty prior to 1895, then by Imperial Japan between 1895 and 1945, and finally, after 1945, by the Republic of China government. In 1949, as a result of defeat by the Chinese Communist Party on the mainland, the government relocated all of the national institutions, including the Judicial Yuan (the highest judicial administrative organ), the Council of Grand Justices (the Constitutional Court) and the Supreme Court, to Taiwan. Due to the ensuing warfare across the Taiwan Strait, however, martial law was declared, and the “Temporary Provisions” that suspended a great many constitutional provisions and substantially expanded presidential powers were put into force. While the 1960s and 1970s saw miraculous economic growth, the implementation of constitutionalism and rule of law were compromised and the functions of courts significantly constrained. It was not until the mid-1980s, when civil society finally emerged with strong demands for social and political reforms, that the courts began to exercise effective functions. A series of constitutional and political reforms were undertaken in the 1990s after the martial law was lifted in 1987. Additional articles were added to the ROC Constitution, which was amended a total of seven times until 2005. The first direct election of the legislature was held in 1992 and the first direct presidential election in 1996. Government power was transferred from the past ruling party, the Nationalist Party (Kuomintang, or KMT), to the opposition party, the Democratic Progressive Party (DPP), in 2000 and 2004, and shifted back to the KMT in 2008 and 2012. Amidst these constitutional and political reforms, reforms regarding the court system and legal education were also placed high on the agenda. In September 1994, President Lee Teng-Hui appointed a new president of the Judicial Yuan along with the Grand Justices of the Constitutional Court who would serve until 2003. The Judicial Reform Committee, whose twenty-seven members included senior Grand Justices, judges from lower courts, prosecutors, private attorneys and law professors, was formed. The Committee was tasked with the delivery of concrete and feasible proposals regarding four issues: The reform of the Judicial Yuan and Grand Justices, the reform of litigation systems, the facilitation of judicial independence, and the reform of legal education. While a few proposals regarding the reform of litigation systems and the measures to facilitate judicial independence were accepted and gradually carried out, others, such as the reforms of the Judicial Yuan and legal education, were not.

Original languageEnglish
Title of host publicationAsian Courts in Context
PublisherCambridge University Press
Pages143-182
Number of pages40
ISBN (Electronic)9781107588813
ISBN (Print)9781107066083
DOIs
StatePublished - 1 Jan 2014

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