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  • Interpretation
  • No.761【The Case on Recusal of Judges and Technical Examination Officers at the Intellectual Property Court】
  • Date
  • 2018/02/09
  • Issue
    • 1.Does applying mutatis mutandis the litigation procedure rules for recusal of judges to the recusal of Technical Examination Officer at the Intellectual Property Court violate the principle of statutory reservation and the principle of clarity of law?
    • 2. Would the right to litigation protected under the Constitution be harmed if the law does not disqualify judges at the Intellectual Property Court who have heard the civil or criminal intellectual property cases from hearing the administrative litigation concerning the same intellectual property?
  • Holding
    •        Article 5 of the Intellectual Property Case Adjudication Act reads: “The recusal of a Technical Examination Officer, depending on the nature of the action involved, shall be governed mutatis mutandis by the rules of recusal applicable to judges in the Code of Civil Procedure, Code of Criminal Procedure or Code of Administrative Litigation Procedure.” This provision does not contradict the principle of statutory reservation or the principle of clarity of law.
      
    •        Paragraph 2, Article 34 of the above Act stipulates that “The judge who has heard the civil or criminal cases concerning intellectual property rights may hear the administrative litigation involving the same right. Subparagraph 3, Article 19 of the Code of Administrative Litigation Procedure shall not apply.” This provision would not harm the people’s right to litigation protected under Article 16 of the Constitution.
      
    •        The petition for interim disposition is hereby dismissed.
  • Reasoning
    •        An invalidation action was filed against a patent of the Petitioner, Aten International Co., Ltd. (hereinafter the “Petitioner”). The Intellectual Property Office of the Ministry of Economic Affairs (hereinafter “Intellectual Property Office”) reviewed the case and dismissed the invalidation action against the invention patent but invalidated the utility model patent. The person filing the invalidation action filed an administrative lawsuit against the Intellectual Property Office’s decision on the invention patent. And, during the proceedings of the administrative lawsuit, the Petitioner independently intervened in the suit (Table Nos. 1, 2 and 3). The Petitioner filed an administrative lawsuit against the decision on the utility model (Table No. 4). (For judgements of the administrative lawsuits on the invalidation of the patent at issue, please see the attached tables (hereinafter the “Administrative Lawsuits”).)
      
    •        During the Administrative Lawsuits, the Petitioner argued that the Technical Examination Officer designated by the Intellectual Property Court had participated in the second instance of the civil procedures involving the same patent and had expressed unfavorable opinions on the validity of the Petitioner’s patent. Therefore, according to Article 5 of Intellectual Property Case Adjudication Act (hereinafter “Provision 1”), which provides that the relevant provisions on recusal of judges stipulated in Subparagraph 3, Article 19 of Code of Administrative Procedure shall mutatis mutandis apply, the Petitioner petitioned for recusal of the aforementioned Technical Examination Officer on the ground that the Technical Examination Officer had “participated in the relevant civil or criminal procedures related to the ongoing lawsuit.” The aforementioned petition was dismissed by the competent court and the Petitioner appealed against said verdict. The Supreme Court reviewed Provision 1 and Paragraph 2, Article 34 of the Intellectual Property Case Adjudication Act (hereinafter “Provision 2”) together and held that an opinion provided by the Technical Examination Officer does not bind the judge when the judge renders a judgement based on legal certainties. And, according to Provision 2, a judge lawfully hearing a case is not subject to the aforementioned Subparagraph 3, Article 19 of the Code of Administrative Procedure. Therefore, drawing an analogy with the more severe situation to clarify a less severe situation, the Technical Examination Officer, who simply assists the judges in the case, may come under Provision 2 and thus is not required to recuse him/herself. As a result, the Supreme Court rendered Verdicts Cai-Zi Nos. 144, 145, 528 and 1078 (2013), dismissing the Petitioner’s appeal and the aforementioned verdicts were final (collectively the “Final Verdicts”). 
      
    •        The Petitioner disagreed with the Final Verdicts. The Petitioner argued that one of the provisions applied in the Final Verdicts, Provision 1, does not provide specific procedural or substantial regulations regarding recusal of a Technical Examination Officer, and as a result the judge who participated in the designation of the Technical Examination Officer (see Xing-zhuan-su-zi Nos. 54 & 68 of administrative verdicts of the Intellectual Property Court (2012)) was also allowed to hear the recusal of such a Technical Examination Officer (Xing-sheng-zi Nos. 3 & 4 of administrative verdicts of the Intellectual Property Court (2012); i.e. cases 1 and 2 in the Table). Also, the Petitioner argued that the principles of statutory reservation and clarity of law stipulated in Article 23 of the Constitution and the people’s right to litigation protected under Article 16 of the Constitution, which secure the people’s right to a fair trial, were violated since the Technical Examination Officer, who had participated in relevant civil and criminal procedures, was not required to recuse him/herself. In addition, the Petitioner argued that the legislative purpose of Provision 2 is such that Provision 2 provides that a judge who has heard the civil or criminal intellectual property cases is allowed to hear related administrative litigation because the legislators wished to avoid discrepancy between the relevant judgements. As a result, the Technical Examination Officer is not subject to Subparagraph 3, Article 19 of the Code of Administrative Procedure due to the application of Provision 2, which overly deprives the Petitioner of his right to litigation. This violates the principle of proportionality under Article 23 of the Constitution and, by deviating from the dual system of litigation, infringes upon the right to litigation protected by the Constitution. Therefore, the Petitioner applied for interpretation of the Constitution by the Judicial Yuan. 
      
    •        In addition, the Petitioner argued that, per the Final Verdicts, the Technical Examination Officer who had participated in the civil and criminal procedures of the same dispute was not required to recuse himself according to Provisions 1 and 2. In order to preclude the Technical Examination Officer’s participation in the suit which would cause irreparable damage to the Petitioner’s right to litigation, the Petitioner applied for an interim disposition suspending the process of the Administrative Lawsuits.
      
    •        It is confirmed that Provisions 1 and 2 were applied in the Final Verdicts. Regarding the Administrative Lawsuits, it is confirmed that the Final Verdicts were favorable to the Petitioner. Therefore, the Final Verdicts, applying Provisions 1 and 2 and thus upholding that the Technical Examination Officer was not required to recuse himself, did not substantially affect the Petitioner’s property rights involved in the Administrative Lawsuits. However, that the Petitioner eventually obtained favorable judgments in the Administrative Lawsuits is different from the issue of whether the application of Provisions 1 and 2 in the Final Verdicts harmed his right to litigation. The Petitioner’s right to litigation may be harmed due to Provisions 1 and 2. Therefore, the Petitioner’s petition is in compliance with Subparagraph 2, Paragraph 1, Article 5 of the Constitutional Interpretation Procedural Act and shall be accepted and heard by the Justices of the Judicial Yuan. The Justices of the Judicial Yuan hereby declare this interpretation as follows: 
      
    • 1. The recusal regime shall be deemed the core substance of people’s right to litigation
      
    •        According to the constitutional principle — where there is a right, there is a remedy — when people’s rights are infringed, they shall be provided with an opportunity to file lawsuits before the courts in order to request that fair trials be conducted in accordance with due process to obtain timely and effective remedies. This is the core substance of the people’s right to litigation protected under Article 16 of the Constitution (see J.Y. Interpretation 752). The implementation of the people’s right to litigation relies on the legislators, who enact relevant laws and further formulate the system of litigation. Although the legislators have discretion over the substance of the system of litigation, they may not violate the aforementioned core substance of the people’s right to litigation. In formulating the system of litigation, there are several aspects that should be considered and the recusal regime is one of them. There are two purposes of the recusal regime. First, in order to secure the people’s right to fair trial and maintain the people’s faith in the integrity of the judicial system, it is necessary to require judges to avoid conflicts of interests between their own personal interests and the discharge of their duties (see J.Y. Interpretation 601). The second purpose is to avoid judges’ prejudgment, which would render the function of judicial remedy meaningless, arising from their previous decisions declared in courts of a different instance or during former administrative procedures regarding the same disputes. In conclusion, the recusal regime is indeed indispensable for ensuring that judges conduct fair trials and for maintaining the core spirit of judicial remedy. Therefore, the recusal regime can be regarded as part of the core substance of the people’s right to litigation protected under Article 16 of the Constitution. 
      
    • 2. The recusal regime is also applicable to Technical Examination Officers at the Intellectual Property Court
      
    •        Since intellectual property cases involve highly specialized knowledge, the office of Technical Examination Officer is established under the Intellectual Property Court and Technical Examination Officers are designated. And, per the judges’ instructions, the Technical Examination Officers are responsible for determining technological issues, collecting relevant technical materials, analyzing relevant technologies and providing their opinions accordingly, as well as participating in legal procedures according to relevant laws and regulations (see Paragraphs 1 and 4, Article 15 of the Intellectual Property Court Organization Act). According to Article 4 of the Intellectual Property Case Adjudication Act, where it is necessary, the court may order the Technical Examination Officer to provide explanations to the parties in the lawsuit, inquire for information, directly ask witnesses or expert witnesses relevant questions, and provide statements to the judges. Also, according to Article 16 of the Intellectual Property Case Adjudication Rules, the court may order the Technical Examination Officer to prepare reports regarding the performance of their duties; and the specific professional knowledge the court learns from Technical Examination Officers may be adopted as the basis for a judgement provided that the aforementioned professional knowledge has been debated by the parties. Therefore, the opinion of the Technical Examination Officers may still influence the outcome of the relevant trials. In order to secure the people’s right to litigation and maintain the people’s faith in the integrity of the judicial system, the recusal regime shall be applicable to Technical Examination Officers, who perform their duties during the hearing process of intellectual property law cases, in accordance with the protection provided by Article 16 of the Constitution for the people’s right to litigation. The specific details regarding the recusal of Technical Examination Officers shall be left for the relevant competent authorities to provide. 
      
    • 3. Provision 1 does not contradict the principles of statutory reservation or of clarity of law
      
    •        The protection of the people’s liberty and rights under the Constitution is very broad. All of the people’s liberty and rights shall be protected as long as the order of society and the public interest are not impeded. Except for the people’s personal liberty, which is expressly provided for by the Constitution, other types of liberty and rights may be limited by laws provided that Article 23 of the Constitution is observed. As for which matters shall be regulated by law and which may be regulated by regulations, reasonable differences are allowed based on the subject matter, the merit that will be regulated, the legal interests, and the extent of limitation (see J.Y. Interpretation 443). Since the purpose of the recusal regime is to maintain the integrity of the judicial system, the aforementioned system is essentially related to the protection of the people’s right to litigation. Therefore, the important substance of the aforementioned system shall be stipulated in relevant laws. The recusal of Technical Examination Officers is no different. 
      
    •        Provision 1 provides that: “Recusal of a technical examination officer shall be governed mutatis mutandis by the rules of recusal of a judge as provided in the Code of Civil Procedure, Code of Criminal Procedure and Code of Administrative Litigation Procedure, as the case may be, depending on which kind of process the technical examination officer participate.” Therefore, even though the legislators do not formulate each and every basis and process regarding the recusal of Technical Examination Officers under specific circumstances, they have already laid down a provision, which mutatis mutandis refers to the recusal rules applicable to judges in the procedures in which Technical Examination Officers participate. It is not that there are no rules. Thus, the principle of statutory reservation is not violated. In addition, there exist thorough regulations regarding the recusal of judges in the Code of Civil Procedure, Code of Criminal Procedure and Code of Administrative Litigation Procedure and the recusal of Technical Examination Officers is indeed similar to the recusal of judges to some extent. Therefore, Provision 1 employs the technique of applying other laws and regulations mutatis mutandis out of consideration for legislative efficiency. The recusal of Technical Examination Officers shall be determined in accordance with the recusal regime stipulated in the Code of Civil Procedure, Code of Criminal Procedure and Code of Administrative Litigation Procedure while making proper changes and adjustments based on the background of each individual lawsuit. In general, Provision 1 provides substantive instructions regarding recusal of Technical Examination Officers and thus Provision 1 does not contradict the principle of statutory reservation. 
      
    •        In addition, the Petitioner argued that because Provision 1 is insufficiently concrete and clear, the judges who designated the Technical Examination Officer are allowed to hear the recusal of the said Technical Examination Officer. Consequently, Provision 1 does contradict the principle of statutory reservation or and the principle of clarity stipulated in Article 23 of the Constitution. However, given that Provision 1 is about the recusal of Technical Examination Officers while the Petitioner’s aforementioned arguments are related to the recusal of judges, the situation referred to in the aforementioned arguments shall be resolved pursuant to Articles 19 and 20 of the Code of Administrative Litigation Procedure, under which the rules of recusal of judges provided in the Code of Civil Procedure should apply mutatis mutandis. According to the aforementioned provisions, the judges who designate the Technical Examination Officers are not required to recuse themselves since reviewing the recusal of a Technical Examination Officer does not meet the requirements prescribed in Article 19 of the Code of Administrative Litigation Procedure. Since the issue of whether the circumstances prescribed in Subparagraph 2, Paragraph 1, Article 33 of the Code of Civil Procedure are met in this case only involves the merit of the specific lawsuit, the Judicial Yuan does not have the power to review it. In conclusion, Provision 1 does not contradict the principle of clarity of law. 
      
    • 4. Provision 2 does not contradict the protection of the people’s right to litigation under the Constitution
      
    •        Provision 2 provides that: “A judge who has heard a civil or criminal Intellectual Property case may hear the administrative litigation concerning the same intellectual property and Subparagraph 3, Article 19 of the Code of Administrative Litigation Proceedings shall not apply.” The purpose of Provision 2 is to have the same judges hear the lawsuits concerning the same intellectual property to avoid discrepancy between judgements in civil, criminal and administrative lawsuits, given the special nature of the cases heard by the Intellectual Property Court (see P. 522 of Yuan Sittings Record, Legislative Yuan Bulletin 96 (10)). This aims to improve consistency among judgements of the courts and maintain the people’s faith in the judgement of the courts. Thus, Provision 2 was stipulated on the basis of the rule of law and the principle of stability of law under the Constitution. 
      
    •        As explained above, the purpose of the recusal regime is to prevent a conflict of interests and prejudgment in different proceedings involving the same dispute, which would render a judicial remedy meaningless, to maintain judicial justice. In order to comply with the dual system of litigation, in which the jurisdiction of civil and administrative litigation is divided into general courts and administrative courts, legislators are not prohibited from formulating a recusal regime which provides that the judges who hear civil and administrative litigations that are related to each other shall recuse themselves (such as Subparagraph 3, Article 19 of the Code of Administrative Litigation Proceedings). However, the aforementioned recusal regime is applicable to the relevant lawsuits heard by different court systems rather than a single lawsuit heard by different instances (in the latter scenario, the people may be deprived of their interest in seeking an appeal by prejudgment of the same judges). Therefore, the aforementioned requirement of recusal is a policy concern. Given that cases heard by the Intellectual Property Court are highly technical and distinctive, and for the purpose of avoiding discrepancy between judgments rendered by the Intellectual Property Court and maintaining consistency between decisions by the courts to increase stability of law, the legislators decided that judges who hear the civil and criminal suits of a dispute need not recuse themselves and may preside over the administrative lawsuit involving related intellectual properties. This does not contravene the people’s right to fair trial protected by the Constitution. The Judicial Yuan shall respect it. Therefore, Provision 2 does not contradict the protection of the people’s right to litigation protected under the Constitution. Drawing an analogy with the more severe situation to clarify a less severe situation, the law providing that the Technical Examination Officer who participates in civil, criminal and administrative suits related to each other need not rescue him/herself does not contradict the protection of the people’s right to litigation under the Constitution. 
      
    • 5. The petition for interim disposition shall be dismissed.
      
    •        Since the Judicial Yuan has declared its Interpretation and the Petitioner has attained a favorable final judgment relating to the Final Verdicts, it is not necessary to declare an interim disposition as was requested by the Petitioner. Therefore, the petition for interim disposition is not in compliance with J.Y. Interpretations 585 and 599 and shall be dismissed.
      
    • ______________________
      
    • * Translated by Jennifer LIN, Albert LIAO & Chia-chi CHEN
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