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The TCC delivers its Judgment 112-Hsien-Pan-6 (2023)


    TAIPEI, May 11, 2023. The Taiwan Constitutional Court (TCC) has delivered its Judgment of the "Case on the Special Judicial Remedy Procedure for Cases Concluded by Military Courts" on May 5, 2023.

Principal Facts, Issues, and Procedure of the Case
    In 1997, the petitioner of this case and then active-duty soldier, Jui-Feng WANG, was accused of robbery with a civilian accomplice, CHEN (full name withheld). Under criminal procedures at that time, the suspects were put into different criminal proceedings, with CHEN tried by a civilian court and WANG by a military court (court-martial). CHEN was later found not guilty by the Taiwan High Court Kaohsiung Branch Court because of insufficient evidence. WANG, on the contrary, was found guilty and sentenced to five-year imprisonment by the Military Southern District Court and High Military Court on appeal, which created a contradiction in the courts' finding in joint evidence. Believing his judgments are not supported by evidence and consist of errors of facts, WANG appealed to the Taiwan High Court Kaohsiung Branch Court under Article 181, Paragraph 5 of the Military Trial Act (1999), which allows certain defendants of military trials to seek judicial remedy from civilian courts in the third instance. His case was later dismissed by the court for such an appeal is limited to cases where the judgments contravene the laws and regulations under the stated provision. 
     The petitioner lodged a constitutional complaint arguing that Article 181, Paragraph 5 of the Military Trial Act (1999) has violated his right to judicial remedy under Article 16 of the Constitution.
    Judgment 112-Hsien-Pan-6 (2023) was announced at 3 p.m. on May 5, 2023. Justice Horng-Shya HUANG wrote this Judgment. Justice Chih-Hsiung HSU, Justice Sheng-Lin JAN, Justice Ming-Yan SHIEH, and Justice Tai-Lang LU each filed a concurring opinion. Justice Jui-Ming HUANG filed an opinion dissenting in part and concurring in part. Justice Chen-Huan WU, Justice Jiun-Yi LIN (joined by Justice Chong-Wen CHANG and Justice Tzung-Jen TSAI), and Justice Hui-Chin YANG each filed an opinion dissenting in part. 

Decision of the Court

    The TCC upheld the constitutionality of the disputed provision, ruling that it has constituted no violation of the rights to judicial remedy under Article 16 of the Constitution, and that the petitioner may motion for a retrial with the Taiwan High Court Kaohsiung Branch Court within the peremptory period of thirty days after the service of this Judgment. The TCC noted that the design of different grounds of appeals between courts of each instance is within legislative discretion. The TCC pointed out that the disputed provision is for implementing the spirit of J.Y. Interpretation No.436, that defendants of military trials of final instance who were sentenced for penalties more severe than limited imprisonment may appeal the civilian courts for judicial remedy on the grounds that the judgments are in contravention of the laws and regulations. The TCC ruled that the disputed provision does not bar the defendant from motioning for a retrial on the ground of error of fact. In the reasoning of this Judgment, the TCC further established beyond the existing laws a new ground for retrial, where the military court convicts the accused soldier based on primarily the same evidence which the civilian court has acquitted the soldier's civilian accomplice with, the accused soldier may motion for retrial on the basis that the two separate trials are based on primarily same evidence hence their conclusions contradicted with each other. 



  1. Full texts of the Judgment and Opinions are available on the TCC website at https://cons.judicial.gov.tw/docdata.aspx?fid=38&id=310005 (Traditional Chinese). An English summary of this Judgment will be available later on the TCC English website.
  2. The TCC's Case News is prepared by the Department of Clerks for the Constitutional Court (Judicial Yuan) for information only and does not bind the Court. 
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