Taiwan: Grand Chambers Are Established At Courts Of Final Appeals

With the birth of Grand Chambers (大法庭) under the Supreme Court and Supreme Administrative Court on July 4, 2019 and the demise of the nonagenarian precedent-resolution system on the same day, Taiwan enters a new chapter in its judicial history.

The Precedent-Resolution System is abandoned

Taiwan's legal system bears an obvious imprint of the Continental Law. Parallel to the Supreme Court (SC) which is the final court of appeal for civil and criminal disputes, a separate Supreme Administrative Court (SAC) serves as the final court of appeal for administrative disputes, as a result of the principle of judicial dualism of private law and public law. While written laws and regulations are placed at a higher level in the hierarchy of sources of law, "precedents" and "resolutions" set by the SC or SAC used to have a strong de facto binding effect on lower courts. A precedent was a holding on a legal issue given by the SC or SAC in a decision and later recognized as of precedential value by a periodic internal pan-panel conference of the same court (removal of an old precedent was subject to the same procedure), and when a pan-panel conference of SC or SAC reached a consensus on an issue where divided views used to exist, a resolution was formed.

Despite being an economic mechanism to harmonize judges' views and fill legal gaps, the precedent-resolution system was criticized as being decontextualized, transgressing into the legislature's domain, and lacking of initiative, immediacy and transparency. In the National Conference on Judicial Reform held by Taiwan's Government in 2018, a conclusion was made to abandon the precedent-resolution system entirely and establish "Grand Chambers" in the SC and SAC to perform the intended functions in an improved manner.

Grand Chambers' Organization

Accordingly, three Grand Chambers were established on July 4, 2019, two of them under the SC to review civil and criminal law issues respectively, and the other one under the SAC to review administrative law issues.

Figure 1. Organization of the Supreme Court

Each of the Grand Chambers under the SC consists of 11 judges. The Chief Judge of the SC also holds the position of the presiding judge of one Grand Chamber, and shall appoint another colleague judge to be the other Grand Chamber's presiding judge. Other 9 members of a Grand Chamber under the SC are elected by anonymous vote among judges at the respective (Civil or Criminal) panels of the SC, with each panel having one reserved seat. The 11th judge is designated on an ad hoc and case-by-case basis by the panel that proposes to initiate a Grand Chamber proceeding. (Articles 51-6 & 51-7 of the Supreme Court Organization Act) The Grand Chamber at the SAC is organized under a similar rule but consists of 9 members instead of 11. (Articles 15-6 and 15-7 of the Supreme Administrative Court Organization Act)

Initiation of a Grand Chamber proceeding

A Grand Chamber proceeding can be initiated by a panel of the SA or SAC through filing of a Proposition with the related Grand Chamber in either of the following circumstances.

Figure 2. Grand Chamber's Proceeding

  1. Proposition for Judicial Consistency

A panel shall file a Proposition for Judicial Consistency if its member judges, after conducting a panel discussion over a case pending before them, find their decisions will be based on a legal opinion which is at variance with one or all preexisting opinions of the same court. That is, if the panel wishes to depart from an established view of the same court, it is obligated to file a Proposition; if the panel finds its peer panels have or may have divergent views on the issue, it is also obligated to file a proposition.

To ensure the divergence is genuine, before filing a Proposition for Judicial Consistency, the proposing panel shall first send a written invitation to at least one of its peer panels to seek their comments on the proposed view. An invited panel is required to comment in 30 days upon receipt of the invitation, and its silence will be deemed as support of the preexisting opinion which the Proposition aims to change. Only after the proposing panel receives one comment (one is enough) in support of the preexisting opinion, can it file a Proposition for Judicial Consistency. (Articles 51-2 & 51-4 of the Supreme Court Organization Act)

While the Proposition can only be filed by the panel in charge of the case on an ex officio basis, a party in the case may move the panel-in-charge to make a Proposition for Judicial Consistency.

  1. Proposition for Law-Making

A panel may file a Proposition for Law-Making if its member judges, after conducting a panel discussion over a case pending before them, find their decisions will be based on a legal opinion that is of "principal importance" (this term actually derives from the German legal term "die prinzipielle Wesentlichkeit.")

For example, as the Legislative Notes on the Draft Amendments to the Supreme Court Organization Act indicated, a legal opinion is of principal importance if it is "beneficial to facilitate the continuous formation of law" or if the issue the opinion addresses is "novel, highly controversial, and widely existing" and hence "requires a unified opinion be rendered immediately and prospectively." (The phrase "continuous formation of law" derives again from a German legal term, i.e. Rechtsforbildung.) (Article 51-3 of the Supreme Court Organization Act)

As no judicial inconsistency is involved here, the proposing panel is not required to extend an invitation to peer panels for comment before filing a Proposition for Law-Making. Neither has a party in the case the standing to move the panel-in-charge to file a Proposition for Law-Making.

A Grand Chamber's adjudication

A Grand Chamber's scope of adjudication is limited to the legal issue delineated in the Proposition, and shall not extend to the case per se that gives rise to the legal issue. As such, a Grand Chamber's decision is always in the form of an interlocutory ruling, rather than a judgment which is preserved for the proposing panel to render. While the proposing panel's conclusive judgment on the merits shall be drafted on the basis of the (majority opinion of the) Grand Chamber's ruling, the ruling's binding power is limited to the specific case.

As such, theoretically speaking, a Grand Chamber's ruling has a weaker source of law status compared with what a precedent or resolution used to have, since lower courts may or may not, in a future case, follow the opinion expressed in a Grand Chamber ruling. If a party in a future case finds that a preexisting ruling of a Grand Chamber has become outdated and asks the lower court to change it but to no avail, then it still can take one last shot at the SC (or SAC) level by submitting a Motion for Grand Chamber Trial to the panel-in-charge, i.e. request the panel file a "proposition for judicial consistency." However, note the mandatory representation rule: a non-prosecutor party in a Grand Chamber proceeding at the SC need be represented by an attorney-at-law. (Article 51-8 of the Supreme Court Organization Act)

Apart from the above, a Grand Chamber proceeding basically applies mutatis mutandis the same procedural rules as those adopted in an SC or SAC panel proceeding. (Article 51-11 of the Supreme Court Organization Act) But there are still a few notable differences.

First, a Grand Chamber shall hold oral hearing sua sponte. An SC or SAC panel, on the other hand, has full discretion to determine whether or not to set a hearing. In fact, only a handful of hearings have ever been held by SC and SAC since they were founded in 1927.

Second, all members of a Grand Chamber shall attend the hearing, and they shall adjudicate the case jointly, while any member disagreeing with the majority opinion may provide his or her dissenting opinion which shall be laid-open as part of the entire Chamber ruling. This makes the Grand Chambers the second judicial organ of Taiwan that has a clearly codified mechanism to release judicial dissents for public discussion (the first one being the Constitutional Court).

Third, a Grand Chamber may, ex officio or on request of a party or its attorney, invite a scholar or expert to provide a written opinion on a special legal issue or express his or her opinion during a Grand Chamber hearing. The invited scholar is required to disclose whether his or her opinion is prepared jointly or cooperatively with any party or its attorney and/or under financial support from them or from any other entity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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