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  • Interpretation
  • No.306
  • Date
  • 1992/10/16
  • Issue
    • Where a defense trial counsel in a criminal action brings an appeal under the Code of Criminal Procedure for the benefit of the accused, but fails to state in the appellate brief to the effect that the appeal is filed in the name of the accused, is such a defect in formality unalterable by amendment and does the court err in dismissing the appeal outright without first ordering an amendment to be made within a fixed time limit?
  • Holding
    •        It is held by our Interpretation Yuan-Je-Tze No. 3027 and by the Supreme Court Precedent T.S.T. 2617 (Supreme Court 1964) that an appeal brought for the benefit of the accused by the defense counsel at trial below must be filed in the name of the accused, and to that extent the holdings are not against the intent of the Constitution in protecting the right of action of the people. It has been pointed out in said holdings, however, that this is an issue of formality. In the event where the defense counsel at trial below has filed an appeal for the benefit of the accused but has only failed to put in the appellate brief such words as state that the appeal is brought in the name of the accused, the situation is not unalterable, and, that being so, the court must first order an amendment to be made within a specified period in pursuance of law. If, without first ordering such an amendment, the appeal is held outright to be non-conformable to law, a legal remedy must be allowed. A priori, the Supreme Court Precedent T.F.T. No. 20 (Supreme Court, 1980), which is related with the aforesaid Precedent, holding that such a defect in formality is unalterable, is inconsistent with the opinion given above and must be rendered unauthoritative.
  • Reasoning
    •        Article 338 of the Code of Criminal Procedure of the Republic of China promulgated on January 1, 1935 (re-named the Code of Criminal Procedure and re-numbered Article 346 when amended on January 28, 1967) provided: “An agent or counsel for the accused at trial below may appeal for the benefit of the accused unless such appeal is contrary to the clearly expressed intention of the accused.” Based on this statute, the Judiciary Yuan delivered its Interpretation Yuan-Je-Tze No. 3027 on November 22, 1945, quoting: “While a counsel for the accused at trial below may appeal for the benefit of the accused under Article 338 of the Code of Criminal Procedure , it is not an independent appeal. Thus, the appeal must be filed in the name of the accused irrespective of whether the counsel is a public defender.” Additionally, the Supreme Court held in its Precedent T.S.T. 2617 (Supreme Court, 1964): “While a counsel for the accused at trial below may appeal for the benefit of the accused, it is not an independent appeal. Thus, the appeal must be filed in the name of the accused. An appeal filed by the counsel in his own name is one non-conformable to the legally required formality.” To that extent, the accused is not only subject to no restraint on his right of appeal, but may also save efforts and expenses and minimize the possibility of unnecessary delay by the appeal filed on his behalf by the counsel at trial below. It is therefore not against the intent of the Constitution in protecting the right of action of the people. Nevertheless, such an appeal, being filed by the counsel at trial below, albeit in the name of the accused, is an act of the counsel rather than of the accused, who has no way of examining the brief to see if it contains such words as indicate an appeal filed in his name. If the appellate brief contains no such words, it constitutes a noncompliance with the statutory formality as clearly indicated by the precedent cited above, and, to the extent that the situation is not unalterable by amendment to be made by the counsel initiating the act of appeal, it goes without saying that the court or the presiding judge must first order an amendment to be made within a specified time limit under the provisos to Articles 362, 367 and 384, respectively, of the current Code of Criminal Procedure , to avoid unexpected infringements upon the right of appeal of the accused simply because of the counsel’s negligence in the form of the appeal. If, without first ordering such an amendment, the appeal is dismissed outright on the ground of non-compliance with law, a legal remedy must be allowed. A priori, the Supreme Court Precedent T.F.T. No. 20 (Supreme Court, 1980), which is related with the aforesaid Precedent, holding that “while counsel at the second trial below is entitled to institute an appeal for the benefit of the accused, such an appeal is one based on agency rather than an independent appeal. Since the appeal in question was filed in the counsel’s own name instead of in the name of the accused, it was not cognizable as a lawful appeal. As the defect is unalterable, the court of the second trial below did not err in law despite its having not first ordered an amendment to be made within a specified time limit” is inconsistent with the opinion given above insofar as the part of the decision holding that such defect in formality is unalterable is concerned and must therefore be rendered unauthoritative.
      
    • *Translated by Raymond T. Chu.
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