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  • Interpretation
  • No.393
  • Date
  • 1996/01/05
  • Issue
    • Is the Supreme Administrative Court Precedent, which holds that no petition for a retrial is admissible unless the act of forgery or fraudulent alternation has been deemed culpable by an irrevocable judgment or the commencement or continuance of a criminal proceeding involving such an act has been made impossible by causes other than insufficiency of evidence, in conflict with the Constitution?
  • Holding
    •        While Article 16 of the Constitution guarantees the people the right to sue, the level of court having jurisdiction, the procedure to be followed, and the elements required when seeking judicial remedies shall be properly and reasonably prescribed by law to be enacted by the legislature by taking into account the nature of the action. The provision of Article 28, Subparagraph 7, of the Administrative Proceedings Act where “an article produced as evidence on which the judgment was based is found to have been forged or fraudulently altered” may serve as a ground for the institution of an action for a retrial refers to the situation where the article produced as evidence is positively found to have been forged or fraudulently altered. It does not mean that the proceeding must be reopened for a retrial so long as the plaintiff petitioning for the retrial alleges unilaterally that such article is forged or fraudulently altered. And the element where the article produced as evidence is positively found to have been forged or fraudulently altered is limited to the situation where the act of such forgery or fraudulent alteration has been found culpable, with an irrevocable judgment pronounced by court, or where it has been impossible, rather than because of insufficiency of evidence, to commence or to proceed with a criminal action in connection with such act. The reason that the condition on which an action for a retrial may be instituted must necessarily be made subject to specific restriction is because the retrial is a proceeding for extraordinary remedy in respect of an irrevocable judgment, with an impact on the stability of the order of law. Accordingly, the Supreme Administrative Court’s Precedent P.T. 1451 (Supreme Administrative Court,1987) is consistent with our opinion given above and is not contrary to the provision of Article 16 of the Constitution for the protection of the right of action of the people.
  • Reasoning
    •        The procedure to be followed and the elements required for the exercise of the right of action of the people under Article 16 of the Constitution are subject to proper and reasonable prescription of law to be enacted by the legislature by taking into account the nature of the action. Judicial procedures are designed to discover truth and to do justice, and evidence is the source by which the facts are brought to light and is thus of great importance. For that reason, the parties must present during the course of the litigation appropriate and extensive arguments on the weight of evidence as well as the truthfulness of the article produced as evidence so that the court may base its findings of the facts on positive evidence and make judgment in light of the truth of the case. Once a judgment has become irrevocable, the dispute is thereby resolved, and the order of law is thus stabilized. Although an action for a retrial may be brought even after a judgment has become irrevocable on the ground that the article produced as evidence on the basis of which the judgment was made is found to have been forged or fraudulently altered, there must be present that the article produced as evidence is positively found to have been forged or fraudulently altered. It does not mean that the proceeding must be reopened for a retrial so long as the plaintiff petitioning for a retrial alleges unilaterally that such article was forged or fraudulently altered. And the element that the article produced as evidence is positively found to have been forged or fraudulently altered is limited to the situation where the act of such forgery or fraudulent alteration has been found culpable, with an irrevocable judgment pronounced by court, or where it has been impossible, rather than because of lack of sufficient evidence, to commence or to proceed with a criminal action in connection with such act. This is explicitly set forth in the Code of Civil Procedure , Article 496, Paragraph 1, Subparagraph 9, and Paragraph 2 of the same article, and the purpose of such provisions is to avoid abuse of the retrial proceeding, thereby ensuring the binding force of the judgment and maintaining the stability of the order of law. The aforesaid elements required for institution of action for a retrial reflect the decision made by the legislature in an effort to maintain balance between stability of the order of law and the rightness of judgments, and should not be deemed to be unconstitutional.
      
    •        The 1969 Administrative Proceedings Act, i.e., the Act before the amendment made on December 12, 1975, provided in Article 24: “Under one of the circumstances specified in subparagraphs of Article 496 of the Code of Civil Procedure , a party may, in respect of a judgment of the Administrative Court, bring before said Court an action for a retrial.” The fact that the entire Article 496 of the Code of Civil Procedure, not just Paragraph 1 thereof, was incorporated by reference in the Administrative Proceedings Act, showed that the prerequisites for an action for a retrial in administrative proceedings were identical to those for an action for a retrial in civil suits. Upon amendment, said article of the Act, re-numbered Article 28, with the causes for a retrial enumerated by subparagraphs, now reads in Subparagraph 7: “a forged or fraudulently altered article produced as evidence on the basis of which a judgment is made,” the text being identical to that of the Code of Civil Procedure, Article 496, Paragraph 1, Subparagraph 9. Furthermore, the reason for the then proposed amendment was stated to be: “revising the text to the enumerative form in light of the textual style of Article 496 of the Code of Civil Procedure and taking into consideration the nature of administrative actions in order to ensure easy application and to avoid further amendment in the future along with the revision of the article number or substance of the Code of Civil Procedure .” It does not carry any implication with reference to the deletion of the prerequisite that the act of forgery or alternation of the article produced as evidence must have been deemed culpable by an irrevocable judgment. Accordingly, the Supreme Administrative Court’s Precedent P.T. 1451 (Supreme Administrative Court, 1987) holding that “the element where the article produced as evidence on the basis of which the judgment was made is found to have been forged or fraudulently altered refers to the situation where the act of such forgery or fraudulent alteration has constituted a criminal offense and such act has been found culpable upon the declaration of an irrevocable judgment, or where it has been impossible, rather than because of lack of sufficient evidence, to commence or to proceed with a criminal action in connection with such act” is consistent with our opinion given above and is not contrary to the provision of Article 16 of the Constitution for the protection of the right of action of the people.
      
    • *Translated by Raymond T. Chu.
      
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