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  • Interpretation
  • No.256
  • Date
  • 1990/04/04
  • Issue
    • Should a judge voluntarily recuse himself from rehearing a case in which he took part in the previous trial or judgment? Is there a limitation on recusal times?
  • Holding
    •        The purpose of the provision of Article 32, Subparagraph 7, of the Code of Civil Procedure, requiring the voluntary recusal of a judge is to disqualify him from performing his duty in a proceeding to rehear the case in which he took part in the previous trial or judgment so as to maintain the interest of all levels of courts and to ensure fair trial and judgment. While a judge who took part in the adjudication of a case in its previous proceeding or the new trial before the case was remanded should voluntarily recuse himself from rehearing the case, a judge who participated in the irrevocable final judgment of a case should likewise voluntarily recuse himself during the new trial where a motion for a new trial has been filed from such irrevocable final judgment. However, taking into consideration the limited number of judges sitting on each court and the purpose of Subparagraph 4 of Article 6 of the Administrative Proceedings Act, we hold that the recusal shall be limited to one time only, and that the part of the Supreme Court Judgment No. Shang-362 of 1937 inconsistent with the views herein expressed must be overruled to protect the people*s right to fair trial.
  • Reasoning
    •        The essence of Article 16 of the Constitution is to protect the right of the people to institute a lawsuit in accordance with legal procedure and to receive a fair trial. The purpose of the provision of Article 32, Subparagraph 7, of the Code of Civil Procedure, requiring the voluntary recusal of a judge is to disqualify him from performing his duty in a proceeding to rehear the case in which he took part in the previous trial or judgment to which the party has lodged a motion of objection, so as to maintain the neutral and objective position of judges and the interest of all levels of courts and to ensure a fair trial and judgment. While a judge who took part in the adjudication of a case in its previous proceeding or the new trial before the case was remanded should voluntarily recuse himself from rehearing the case, a judge who participated in the irrevocable final judgment of a case should, for the same reason, voluntarily recuse himself during the new trial where a motion for a new trial has been filed from such irrevocable final judgment. However, taking into consideration the limited number of judges sitting on each court and that there is no limit on the number of times for which motions for retrial may be brought, and with reference to the purpose of Subparagraph 4 of Article 6 of the Administrative Proceedings Act, we hold that the recusal shall be limited to one time only. By way of example, in a proceeding of a second new trial brought by joining a motion from the irrevocable final judgment entered upon a new trial with a motion from the original irrevocable final judgment, only the judge who took part in making the irrevocable final judgment upon the retrial needs to recuse himself, and the judge who took part in rendering the original irrevocable final judgment is not required to do so. Thus, the Supreme Court Judgment No. Shang-362 of 1937 is inconsistent with our views expressed above in its statement that "an irrevocable final judgment to which objection is raised by filing a motion for retrial is not a decision of the trial preceding the new trial, and a judge who participated in rendering such final and binding judgment shall not be required to recuse himself from hearing the new trial pursuant to the provision of Subparagraph 7 of Article 32 of the Code of Civil Procedure." (The text of said Subparagraph was originally: "If the judge participated in the decision of the former trial, or arbitration, of the same action" but has now been amended to read: "If the judge participated in the decision of the former trial or in the decision before remand for retrial, or arbitration, of the same action.") The part of the Supreme Court judgment quoted above must be overruled to protect the people*s right to a fair trial.
      
    • *Translated by Raymond T. Chu.
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