萬國法律事務所

Taiwan’s Judicial Yuan recently modified Article 388 of the Code of Criminal Procedure to provide assigned defense counsel in the third instance of trial. According to the current version of the Act, assigned defense counsel is only applicable at the first and second instances. After the modification comes into effect, assigned defense counsel will be available at the third instance of trial, as well.

However, the availability of having defense counsel assigned to a defendant is limited to cases where the minimum punishment is no less than three years imprisonment, a high court has jurisdiction over the first instance, the accused is unable to make a complete statement due to unsound mind, or the defendant is indigent. In such cases, the presiding judge in the second instance shall ask that defense counsel be assigned to represent the defendant in the third instance if no defense attorney has been retained. Moreover, the Judicial Yuan will also request the high court to request assignment of defense counsel to the Supreme Court to assist in this regard.

The Chairman of Taiwan’s Judicial Reform Foundation, Mr. Shi-Jeng Lin, is of the opinion that in accordance with the modified provision, a defendant facing capital punishment in the third instance may apply for judicial review and argue the constitutional invalidly of capital punishment. Nevertheless, the President of the Judicial Yuan, Mr. Hau-Min Lai, is quite conservative and is of the opinion that due to the importance of stability of law, it is not appropriate for a case to remain in an uncertain and unresolved status for a lengthy time.

The Legislative Yuan hopes to pass the modified provision in this session and then to implement the same as soon as possible so as to promote the protection of human rights.