Editor’s note: In 2020, after years of advocacy by judicial reformers, Taiwan’s legislature passed the Citizen Judges Act (國民法官法 or Guo Min Fa Guan Fa) , providing for professional judges to share their benches - and their power - with lay judges in a relatively small subset of criminal cases. In cases punishable by more than ten years’ imprisonment or those with criminal intent resulting in death, six randomly selected citizens and three professional judges will jointly decide both guilt or innocence and the sentence. Courts, prosecutors, and lawyers are preparing for the law to take effect in January 2023. USALI Perspectives invited six experts in Taiwan’s judicial system - scholars, lawyers, a prosecutor, and a former judge - to unpack the practical challenges and potential larger significance of this seemingly small step. Part 1 can be found here.

Why Reformers Want to Go Further and Install a Jury System

By Justin Yi-sheng Shen

Lay adjudication can give citizens a meaningful role in the administration of justice and may boost their confidence in the courts. However, the use of lay adjudication also may raise questions about the extent to which systems can deliver a fair trial and the safeguards needed to assure accused persons that the system of adjudication is independent and impartial.

The preceding decades have witnessed reforms in the use of lay adjudication in a number of states. A growing number of systems with civil law roots have been experimenting with forms of jury trial, including, most prominently, Spain (in 1995) and Russia (in 1993) . In addition, a number of countries have reviewed the role of the jury in their criminal justice systems in order to comply with the human rights and democratic standards required by the European Court of Human Rights. Denmark (2008), Switzerland (2012), and Norway (2015) all repealed the jury system and replaced it with a mixed panel of professional and lay judges sitting together.

Taiwan’s Citizen Judges Act of 2020 is a collaborative or mixed court system along the lines of the Japanese or German models. The reform converts the professional judge trial into a mixed court of three professional judges and six citizen judges (lay jurors), who try serious offenses as the court of first instance.

[T]he mixed professional-citizen judge is akin to ‘assembling wolves and rabbits together, and what will happen is that the wolves will eat the rabbits.’

Many reformers say the Citizen Judges Act falls short of what is needed. The Taiwan Jury Association has been pushing for a jury system for decades. Association founder Jerry Cheng (鄭文龍) has said that the mixed professional-citizen judge system is akin to “assembling wolves and rabbits together, and what will happen is that the wolves will eat the rabbits.… The opinions and viewpoints of ordinary citizens would disappear in such a setting.” The Judicial Reform Foundation has said that a jury system is the best way to deliver justice for the people and is the most open and democratic way for a judicial system to operate. Foundation Chairman Lin Yung-sung (林永頌) predicted that “the real authority and decision-making power would still be held by professional judges.” During the 2017 National Judicial Reform Conference, the lay judge system and jury system attracted an equal number of supporters; based on this, the Taiwan People’s Party and New Power Party lawmakers, along with some reformers, are calling for a dual-track system. They want the government to simultaneously test both a jury system and a lay judge system for two to three years to determine which works best and garners the most public support.

Some countries, including Sweden and Austria, have implemented both lay judge and jury systems at the same time. Sweden uses a mixed court (nämndemän) of one professional judge and three lay judges in most types of criminal trials. Sweden also permits a jury trial for offenses against the fundamental laws on freedom of the press, including unlawful threats, defamation, sedition, espionage, and other speech-related offenses. In such cases, the defendant has the right to a jury trial in the lower court (tingsrätt). Sentencing is the sole prerogative of judges.

If Taiwan were to follow Sweden’s example, it could implement a mixed panel of professional and lay judges sitting together in trials for serious offenses while also allowing defendants to opt for jury trials for some offenses related to public order ((Criminal Code Articles 149 – 153; Assembly and Parade Act Articles 29, 31) or defamation (Criminal Code Articles 309 – 313; Assembly and Parade Act Article 30). The facts involved in such crimes are basically social facts, which are closer to the observation and feelings of the general people. A determination of the facts by citizens rather than professional judges can better show the will of the people and gain the trust of the people.

The Taiwan Jury Association argues that only jury trials can protect freedom of speech for political dissidents and regular citizens in cases involving breeches of the law during street protests. Taiwan has enacted the Assembly and Parade Act to protect people’s right to the freedom of assembly and parade while also maintaining social order; however, assemblies or marches on political, labor, or environmental issues often turn into violent street protests and even bloody conflicts. Trials over whether such disorderly behavior violates the Assembly and Parade Act or Criminal Code often arouses varying opinions and even harsh criticism from the public. It would be better to leave such decisions to a jury so that the court's judgment can be closer to the will of citizens.

Lay adjudication can enhance human rights norms by facilitating both the right of citizens to participate in adjudication and the right of defendants to a fair trial. Where citizens are given an opportunity to participate as adjudicators in the administration of criminal justice, their participation should be meaningful and effective. It is hoped that the implementation of the Taiwan Citizen Judges Act will - as stated in its legislative intent - actually enhance the transparency of the judiciary, account for the public's opinions towards the law, promote the public's confidence in the judiciary, and provide the public with a better understanding of the judiciary.

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Justin Yi-sheng Shen 沈宜生 is a partner at Peace & Grace International Attorneys at Law in Taiwan, a former presiding judge of the Taiwan High Court, and a former visiting scholar at the U.S.-Asia Law Institute at NYU School of Law.

Taiwan’s Lay Judges System In Comparative Perspective

By Rieko Kage

Why did Taiwan reform its criminal justice system as it did, when it did? Taiwan’s reform is part of a broader international trend toward bringing lay judges or jurors into criminal court proceedings. For instance, Japan legislated its lay judge or “saiban-in” system in 2005 and South Korea legislated its jury system in 2007. Taiwanese policymakers carefully studied these and other international models while developing their own reform.

My 2017 book Who Judges? Designing Jury Systems in Japan, East Asia, and Europe uses case studies of Japan, South Korea, Spain, and Taiwan to show that party politics has crucially shaped the design of jury/lay judge systems in recent decades. Specifically, “new left”-oriented political parties, which are typically interested in fostering direct political participation, are likely to push for reforms that delegate substantial powers to jurors/lay judges. Therefore, the more powerful that such parties are at the time when judicial reform is on the political agenda, the greater the shift in decision-making power from professional to lay judges.

Taiwan’s reform is part of a broader international trend toward bringing lay judges or jurors into criminal court proceedings.

Consistent with the relatively left-oriented policy preferences of the ruling Democratic People’s Party (DPP), Taiwan’s new system transfers considerable powers from professional to lay judges. For instance, it gives professional judges little discretion to determine which criminal cases will include lay judges. By contrast, in South Korea’s system, professional judges have the freedom to decide to dispense with a jury in a given case. Furthermore, under Taiwan’s new system, a guilty verdict requires the support of at least six of the nine judges including at least one professional and and one lay judge. By contrast, in South Korea, even where a jury has been empaneled, its decision does not bind the professional judges. In these and other respects, Taiwan’s new system more closely resembles that of Japan.

Some of Taiwan’s activist lawyers had hoped for a more dramatic break from the previous system. But the DPP government chose not to emulate the Anglo-American system that puts the power to convict or acquit entirely in the hands of the jury. The presence of professional judges at all stages of deliberations will allow them to exert considerable influence over the course of discussion. Nevertheless, the voting rules ensure that the professional judges cannot ignore the lay judges’ views. Moreover, the fact that lay judges will have a say over both verdict and sentence gives them a broader mandate than the typical Anglo-American jury, whose role is limited to rendering the verdict.

What effects can we expect from Taiwan’s new system? The experience of the Japanese saiban-in system offers some insights. Many experts had thought that lay judges would bring a more punitive mindset into the courtroom, but it was the opposite. Japan famously has a 99.9% conviction rate, but in its lay judge trials, the conviction rate in 2020 was 98.7%. The difference may appear small until one realizes that acquittals in trials with lay judges are ten times higher than acquittals in trials without them (1.32% versus 0.13%). Furthermore, the number and frequency of death sentences has declined markedly in Japan since the inception of the saiban-in system. Prior to the introduction of its new lay judge system, in 2002, Japan had 18 death penalty decisions, representing 0.023% of all criminal cases. But in 2019, the number of death penalty decisions was down to two, representing 0.004% of all cases. It will be interesting to see if the same trends occur in Taiwan.

[T]rust in the justice system in Taiwan is around 55%, which is considerably lower than many other developed democracies. Lay judge systems can improve trust on the margins.

Finally, will Taiwan’s new system improve public trust in the judicial system, as its policymakers are hoping? According to the World Values Survey, trust in the justice system in Taiwan is around 55%, which is considerably lower than many other developed democracies. Lay judge systems can improve trust on the margins. Surveys in the US, UK, and Japan indicate that although most citizens are initially reluctant to serve as jurors/lay judges, afterward they often report that it was a fulfilling and educational experience that enhanced their confidence in the justice system. That said, not many citizens serve as lay judges every year, so other factors such as highly publicized court cases or judicial scandals may have a greater impact on public trust.

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Rieko Kage is an associate professor of political science at the University of Tokyo and author of Who Judges? Designing Jury Systems in Japan, East Asia and Europe (Cambridge University Press, 2017).

Suggested Citation:
“Taiwan’s Citizen Judges Act: Part II,” USALI Perspectives, 3, No. 5, October 10, 2022, https://usali.org/usali-perspectives-blog/taiwans-citizen-judges-act-part-2.

The views expressed in USALI Perspectives are those of the authors, and do not represent those of USALI or NYU.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.