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  • Interpretation
  • No.238
  • Date
  • 1989/03/31
  • Issue
    • Is a procedural violation of the law in trial proceedings subject to an extraordinary appeal if it does not affect the outcome of the trial decision?
  • Holding
    •        "The evidence should be investigated at trial according to the provisions in this Code" as provided in Article 379, Subsection 10, of the Code of Criminal Procedure (hereinafter the “CCP”) refers to the evidence that serves objectively as the basis for investigating the facts and applying the laws in a trial court.  If the court fails to investigate such evidence, the ensuing decision will be deemed as a plain violation of the law.  However, for the evidence which does not fall into the abovementioned category, the court’s failure of investigation at trial will not be subject to the provision mentioned above, i.e., no plain violation of the law will result.  The failure to investigate such evidence can constitute a procedural violation of the law. However, since such violation provides no grounds for an appeal of the third instance (i.e., an appeal on account of legal grounds) due to the provision of Article 380 of the CCP (which provides that a procedural violation of the law which apparently does not affect the outcome of the trial decision will constitute no grounds for an appeal of the third instance), it will not accordingly constitute a basis for an extraordinary appeal.  Thus, the part "the procedural violation of the law is not subject to an extraordinary appeal, if it in no way affects the trial decision" in the Resolution of the Joint Meeting of the Civil and Criminal Panels of the Supreme Court issued on February 22, 1950, in terms of evidence investigation, is not contrary to the law nor is it contradictory to J.Y. Interpretation No. 181.
      
  • Reasoning
    •        The mechanism of extraordinary appeal in criminal procedure is designed to ensure the uniform application of the law in trials and to offer relief for the parties who claim that a final trial decision is contrary to the law.  Due to its unique nature, an extraordinary appeal does not apply, either by a plain application or that of mutatis mutandis, to any CCP provision concerning the appeal of the third instance except for Article 349 of the Code.  Article 441 of the CCP provides: “When a decision which is finalized in terms of appeal (i.e., the relief of appeal has run out) is found as the result of a trial to be in violation of the law, the Public Prosecutor General should file an extraordinary appeal against it with the Supreme Court.”  The expression “a trial held to be in some way in violation of the law” includes the trial decision and trial procedure in violation of the law.  The latter means the trial procedure other than the decision itself is held to be in violation of procedural provisions and in effect renders the trial decision contradictory to the law.  For instance, a previous trial proceeding was held to be in violation of the CCP provisions, resulting in an error in the application of law in turn adversely affecting the holding of the decision. In the interest of the accused, such error will be regarded as a case of a trial decision in violation of the law and subject to Article 447, Section 1, Subsection 1, of the CCP, as clarified by J.Y. Interpretation No. 181.  In the case where "the evidence should have been investigated during the trial proceedings according to this Code" as provided in Article 379, Subsection 10, of the CCP, both the trial proceeding and the decision derived are plainly contrary to the law.  However, "the evidence should be investigated during the trial proceeding according to this Code” refers to the evidence that should be admitted apparently as basis for investigating the facts and applying the law by the trial court.  If the trial court fails to investigate such evidence, the decision made will be deemed as a plain violation of the law.  Any evidence that does not objectively serve as the basis for investigating the facts or applying the law by the trial court will not be investigated so as to avoid any delay in trial proceedings or otherwise affect the public interest.  The holding above is clearly justified with reference to the provision of Article 172 of the CCP (which provides that the trial court may dismiss a motion for an investigation of evidence when the investigation is viewed as unnecessary).  Accordingly, the decision not to investigate such evidence does not fall into the application category of Article 447, Section 1, Subsection 1, of the CCP.  The decision not to investigate such evidence can constitute a procedural violation of the law. However, since such violation provides no grounds for an appeal of the third instance (i.e., an appeal on account of legal grounds) due to the provision of Article 380 of the CCP (which provides that a procedural violation of the law which apparently does not effect the outcome of the trial decision will constitute no grounds for an appeal of the third instance), it will not accordingly constitute a basis for an extraordinary appeal.  The part "the trial proceedings contrary to the law, which would in no way affect the outcome of the trial, are not subject to the review of an extraordinary appeal" in the Resolution of the Joint Meeting of the Civil and Criminal Panels issued on February 22, 1950, in terms of evidence investigation, is not contrary to the law nor does it contradict J.Y. Interpretation Shi-Tzi No. 181.  As to whether the failure to investigate evidence results in a violation of the procedural rules, this is a matter to be decided on a case-by-case basis.
      
    • *Translated by TSAI Chiou-ming, Head Public Prosecutor
      
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