August 2017
If a decision is rendered without ascertaining evidence which has been investigated, the decision should be deemed to be flawed for failure to investigate evidence which shall be investigated pursuant to law(Taiwan)
Emily Chueh
The Taiwan High Court rendered the 104-Tai-Shang-3954 Criminal Decision of December 30, 2016 (hereinafter, the "Decision"), holding that if a decision is rendered without ascertaining evidence which has been investigated, the decision should be deemed to be flawed for failure to investigate evidence which shall be investigated pursuant to law.
According to the facts underlying the Decision, the first instance decision which found the Appellant Chen-hung Lin to have continuously breached his duty as a bank employee in an attempt to pursue illegal gains for third parties to an extent that he had committed the offense of impairing the bank's property was upheld by the original decision. Dissatisfied, the Appellant filed this appeal.
According to the Decision, although the evidence was investigated, if the details of the evidence are still not ascertained and clarified, this is tantamount to no investigation. If a decision is rendered directly on such basis, it shall be deemed that the decision is flawed for failure to investigate evidence which shall be investigated pursuant to law.
In the original decision, real estate transaction materials such as the General Simplified Tabular Material for Transparent Housing Information and the Special-Sales Market of the Transparent Housing Information Magazine were cited to illustrate the reasonable market value of the three pieces of collateral in this case, and it was held that "since the reasonable value of the collateral at that time was obviously lower than the amount of the long-term secured loan, the collateral could not actually secure the loan," which was unfavorable to the Appellant. However, it was pointed out in this Decision that it is a well-known fact that the characteristics, location, floor level, age, condition and timing of transaction of the residential units (building, mansion or apartment) would affect the closing prices and that there is still a difference between the transaction price of an ordinary residential unit and a price determined in a court auction.
Therefore, it was held in the Decision that with respect to the five transactions selected by the original decision for price comparison, the original decision did not specify information such as the characteristics, floor level, age and condition of such residential units, not to mention that such examples were hardly appropriate basis for price comparison since they were all court auctions, not ordinary transactions with the auction timing quite different from the timing of the Appellant's appraisal. Therefore, the original decision failed to indicate specifically how the information set forth in the Transparent Housing Information Magazine was appropriate for price comparison when electing to adopt such information to determine market value and jump to the above finding. Since the original decision was flawed for insufficiency of investigation and grounds, it was reversed and remanded.
The Taiwan High Court rendered the 104-Tai-Shang-3954 Criminal Decision of December 30, 2016 (hereinafter, the "Decision"), holding that if a decision is rendered without ascertaining evidence which has been investigated, the decision should be deemed to be flawed for failure to investigate evidence which shall be investigated pursuant to law.
According to the facts underlying the Decision, the first instance decision which found the Appellant Chen-hung Lin to have continuously breached his duty as a bank employee in an attempt to pursue illegal gains for third parties to an extent that he had committed the offense of impairing the bank's property was upheld by the original decision. Dissatisfied, the Appellant filed this appeal.
According to the Decision, although the evidence was investigated, if the details of the evidence are still not ascertained and clarified, this is tantamount to no investigation. If a decision is rendered directly on such basis, it shall be deemed that the decision is flawed for failure to investigate evidence which shall be investigated pursuant to law.
In the original decision, real estate transaction materials such as the General Simplified Tabular Material for Transparent Housing Information and the Special-Sales Market of the Transparent Housing Information Magazine were cited to illustrate the reasonable market value of the three pieces of collateral in this case, and it was held that "since the reasonable value of the collateral at that time was obviously lower than the amount of the long-term secured loan, the collateral could not actually secure the loan," which was unfavorable to the Appellant. However, it was pointed out in this Decision that it is a well-known fact that the characteristics, location, floor level, age, condition and timing of transaction of the residential units (building, mansion or apartment) would affect the closing prices and that there is still a difference between the transaction price of an ordinary residential unit and a price determined in a court auction.
Therefore, it was held in the Decision that with respect to the five transactions selected by the original decision for price comparison, the original decision did not specify information such as the characteristics, floor level, age and condition of such residential units, not to mention that such examples were hardly appropriate basis for price comparison since they were all court auctions, not ordinary transactions with the auction timing quite different from the timing of the Appellant's appraisal. Therefore, the original decision failed to indicate specifically how the information set forth in the Transparent Housing Information Magazine was appropriate for price comparison when electing to adopt such information to determine market value and jump to the above finding. Since the original decision was flawed for insufficiency of investigation and grounds, it was reversed and remanded.
