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  • Interpretation
  • No.539
  • Date
  • 2002/02/08
  • Issue
    • (1) Shall the constitutional protection of judgeship be extended to the holder of office as a division*s leading judge of the high and district courts?
    • (2) Shall a judge*s removal from, transfer from, or promotion to the holder of office as a division*s leading judge and the term thereof be subject to the principle of legal reservation (Gesetzesvorbehalt) and thus only be carried out with the authorization of the laws?
  • Holding
    •       Article 80 of the Constitution provides: "Judges must remain non-partisan and neutrally adjudicate a case according to the laws, free from any influence." This provision announces judicial independence and calls for the state to set up a well-functioning judicial system embodied with the doctrine of adjudicative neutrality. Article 81 of the Constitution further provides: "Judges shall hold office for life. Unless criminally convicted, sanctioned, or adjudged incapacitated, judges cannot be removed from office; unless pursuant to the laws, judges can neither be suspended nor transferred from office nor receive reduced compensation for their services." This constitutional protection is meant to provide an assurance of adjudicative neutrality through judgeship protection. Therefore, any personnel changes or administrative adjustments affecting a judge*s office, rights or legal entitlements can only be implemented when the laws so provide. Moreover, the protection is not limited to those enumerated under the Constitution. Even so, any such changes or adjustments not affecting a judge*s office or any legal entitlements may be reasonably carried out in light of judicial administrative supervisory power, provided that the doctrine of adjudicative neutrality is not violated. 
      
    •       Pursuant to relevant articles of the Court Organic Act and the Organic Act of the Administrative Court, the office of the division’s leading judge of each judicial level shall be assumed by a judge of that level except for the one assumed by a dean of the court. Articles 15 and 16 of the Court Organic Act provide that division’s leading judges shall have the responsibility of supervising judicial administration affairs within their ambit. Such ministerial business is of a nature of ancillary judiciary administration necessary for the orderly proceedings of a trial. A division’s leading judge may also act as a presiding judge and form a trial panel with other judges to try a case. The office of a presiding judge is empowered to command trial proceedings. A presiding judge has the same judicial power in determining a case as the other panel judges except that the presiding judge is the commander of the trial. While a division’s leading judge as a rule acts as a presiding judge during a trial en banc, a most senior judge may instead so perform in the absence of a division’s leading judge. In terms of a trier of facts and law, both are judges in essence. A presiding judge is a commander of proceedings during a trial en banc. In comparison, the office of division’s leading judge is of a ministerial nature. It is evident that the division’s leading judge and presiding judge hold offices with different functions. The judgeship protection under Article 81 of the Constitution is afforded to judges so that they can adjudicate a case in neutrality and it does not extend to the office of a division’s leading judge established to supervise the ministerial business of a court. Although a judge assuming the office of division’s leading judge has more job responsibilities than other judges and enjoys a higher starting grade, the highest grade and step both abovementioned judges may advance to in terms of judgeship are the same, as are the rights or legal entitlements both may enjoy under the laws.
      
    •       Pursuant to Points 2 and 3 of the Guidelines for Administering the Term and Transfer of Division’s Leading Judges of the High Court and Any Inferior Courts and their Branches (amended as Points 2 and 4 of the Guidelines for Administering the Term and Transfer of Division’s Leading Judges of the High Court, Any Inferior Courts and their Branches, and the Administrative High Court), issued by the Judicial Yuan in a letter of May 5, 1995, numbered (84) Yuan-Tai-Ren-Yi-Tzi (08787), upon the expiry of a division’s leading judge*s term, an administrative act to remove a judge from the office of division’s leading judge, without adversely affecting the judgeship, its rank, grade, or compensation, releases a judge from administrative duties only. Thus, such a removal is of a nature akin to an administrative adjustment of any government agency. A judiciary organization based on its inherent power of management shall have the power to issue orders making any administrative arrangements and the exercise of the power is not in contravention of the judgeship protection afforded under Article 81 of the Constitution. 
      
    •       To realize the precept of fair trial, well-functioning trial peripheral ministerial measures are indispensable. Judiciary administration regarding trial proceedings is such a system. Division’s leading judges play an active role in supervising and managing judicial administration affairs. To be consistent with the principle of legal reservation (Gesetzesvorbehalt) in organizing the courts as required by Article 82 of the Constitution and to establish a well-functioning independent judicial system, it is essential that the ministerial business in connection with the election and removal of a division’s leading judge be well planned through authorization of law for the purpose of maintaining judicial independence and upholding the doctrine of adjudicative neutrality (See J.Y. Interpretation No. 530).
  • Reasoning
    •       Article 80 of the Constitution provides: "Judges must remain non-partisan and neutrally adjudicate a case according to the laws, free from any influence." This provision means that judges must try a case based on their own knowledge of the laws, not subject to any directives or orders coming from within upper courts or judiciary government agencies or without, a principle called the doctrine of adjudicative neutrality. Based on this doctrine, the state may be called to set up a well-established judicial system. Article 81 of the Constitution further provides: "Judges shall hold office for life. Unless criminally convicted, sanctioned, or adjudged incapacitated, judges cannot be removed from office; unless pursuant to the laws, judges can neither be suspended nor transferred from office nor receive reduced compensation for their services." This constitutional protection is meant to provide an assurance of adjudicative neutrality through judgeship protection. Therefore, any personnel changes or administrative adjustments affecting a judge*s office, rights or legal entitlements can only be carried out when the laws so provide. Moreover, the protection is not limited to those enumerated under the Constitution. Even so, any such changes or adjustments not affecting a judge*s office or any legal entitlements may be reasonably done in light of judicial administrative supervisory power, provided that the doctrine of adjudicative neutrality is not violated. 
      
    •       Pursuant to Paragraph 1 of Article 15, Articles 16, 36, and 51 of the Court Organic Act, and Articles 4, 9, 14 of the Organic Act of the Administrative Court, the office of division’s leading judge of each adjudicative level shall be assumed by a judge of that level except for the one assumed by a dean of the court. As the Acts provide, a judge may assume the office of a division’s leading judge. Both Acts further delegate division’s leading judges the power to supervise judicial administration affairs within their ambit. Such ministerial business is of a nature of ancillary judiciary administration necessary for the orderly proceedings of a trial. This view could be further evidenced by the power delegated to the Judicial Yuan to promulgate rules regulating court business of each level and district pursuant to Article 78 of the Court Organic Act and Article 30 of the Organic Act of the Administrative Court. A division’s leading judge is mainly responsible for supervising the ministerial business of the court. A division’s leading judge may also act as a presiding judge and form a panel with other judges to try a case. The office of a presiding judge then is empowered to command trial proceedings. A presiding judge has the same judicial power in determining a case as the other panel judges except that the presiding judge is the commander of the trial. While a division’s leading judge as a rule acts as the presiding judge during a trial en banc, a most senior judge may instead so perform in the absence of a division’s leading judge. In comparison, both differ in duty division. In terms of a trier of facts and law, both are judges in essence. A judge once removed from the office of division’s leading judge should automatically be removed from the office of presiding judge. Even so, the judgeship and its legal entitlements are not adversely affected. According to Paragraph 1 of Article 34 and Article 36 of the Court Organic Act and Articles 9 and 10 of the Organic Act of the Administrative Court, the starting grade for a division’s leading judge is higher than that of a judge since a division’s leading judge has more responsibilities. However, according to Paragraph 2 of Article 34 of the Court Organic Act and Paragraph 2 of Article 10 of the Organic Act of the Administrative Court, the highest grade and step both may advance in terms of judgeship are the same, as are the rights or legal entitlements both may enjoy under the laws. Furthermore, due to seniority, a judge may have a higher grade or step than a division’s leading judge. Therefore, as a judge*s removal from the office of division’s leading judge does not constitute a demotion, so a judge*s assumption of that office is not such a promotion to a position of a higher grade as provided under Article 4 of the Public Functionaries Promotion Act and Article 2 of the Enforcement Rules of the same Act, much less a promotion from a non-chief position to a chief one. Furthermore, a judge*s appointment and transfer are exclusively subject to the purview of the Court Organic Act, Organic Act of the Administrative Court, and Judiciary Staff Personnel Act when the Public Functionaries Promotion Act is inapplicable (See Article 1 of the Public Functionaries Promotion Act). Since the offices of division’s leading judge and presiding judge are different in terms of their job responsibilities, the protection under Article 81 of the Constitution is afforded to judges so that they can adjudicate a case in neutrality and it does not extend to the office of a division’s leading judge established to supervise the ministerial business of a court. 
      
    •       Pursuant to Points 2 and 3 of the Guidelines for Administering the Term and Transfer of Division’s Leading Judges of the High Court and Any Inferior Courts and their Branches (amended as Points 2 and 4 of the Guidelines for Administering the Term and Transfer of Division’s Leading Judges of the High Court, Any Inferior Courts and their Branches, and the Administrative High Court), issued by the Judicial Yuan in a letter of May 5, 1995, numbered (84) Yuan-Tai-Ren-Yi-Tzi (08787), upon the expiry of a leading judge*s term, unless the term is extended on a need basis, an administrative act to remove a judge from the office of leading judge, without adversely affecting the judgeship, its rank, grade, or compensation, releases a judge from administrative duties only. Thus, such a removal is of a nature akin to an administrative adjustment of any government agency. A judiciary organization based on its inherent power of management shall have the power to issue orders making any administrative arrangements and the exercise of the power is not in contravention of the judgeship protection afforded under Article 81 of the Constitution. 
      
    •       To realize the precept of fair trial, well-functioning trial peripheral ministerial measures are indispensable. Judiciary administration regarding trial proceedings is such a system. The leading judge of a civil or criminal court or a civil judgment enforcement bureau supervises each court*s ministerial business, and the leading judge of a specialized, general or summary court manages each court*s overall ministerial business. The leading judges play an active role in facilitating civil, criminal and judgment enforcement proceedings. The leading judges of administrative courts play an identical role. When a judge is elected to the office of leading judge through appropriate processes based on erudition, competence, and comprehensive trial experience, he/she certainly contributes to the upgrading of trial quality. Article 82 of the Constitution provides: "The organization of the Judicial Yuan and every level of the courts shall be established pursuant to the laws." To be consistent with the principle of legal reservation (Gesetzesvorbehalt) in organizing the courts and to establish a well-functioning judicial system with adjudicative neutrality, it is essential that the ministerial business in connection with the election and removal of a leading judge be well planned through authorization of law for the purpose of maintaining judicial independence and upholding the doctrine of adjudicative neutrality (See J.Y. Interpretation No. 530). 
      
    • *Translated by Joe Y. C. Wu.
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