August 2017
Expert witnesses are both witnesses and experts and should be asked to sign the affidavit for a witness and/or additionally the affidavit for an expert, depending on the circumstance(Taiwan)
2016.08.04
Frank Sun
The Supreme Court rendered the 105-Tai-Shang-1948 Criminal Decision of August 4, 2016 (hereinafter, the "Decision"), holding that expert witnesses are both witnesses and experts and should be asked to sign the affidavit for a witness and/or additionally the affidavit for an expert, depending on the circumstance.
According to the facts underlying this Decision, the Appellants were found in the original decision to be guilty of jointly and continuously committing the offense of false reporting and disclosure under Article 171, Paragraph 1, Subparagraph 1 of the Securities and Exchange Law. Dissatisfied, the Defendants filed this appeal.
According to the Decision, although expert witnesses are both witnesses and experts, still what is stated is based on the facts they have experienced and is often irreplaceable. Therefore, they are certainly witnesses subject to requirements for witnesses. Still, they are experts if their statement incorporates their expertise and conveys their opinions concerning the current facts they have observed. Therefore, they should be asked to sign the affidavit for a witness and/or additionally the affidavit for an expert separately. If the legal procedure is violated or breached, the testimony or expert opinion does not comply with the legal procedure and is certainly not lawful evidence.
It was further pointed out in this Decision that the original decision which found the Appellants had jointly and continuously committed the offense of false reporting and disclosure cited the testimonies of auditors from the Accounting and Audit Section of the Securities and Futures Bureau (hereinafter, the "SFB") of the Financial Supervisory Commission. However, the testimonies merely stated their expertise and pertained to issues such as the scope of material matters and whether anything which affects an investor's decision is deemed material in the requirement that material matters relating to transactions with related parties shall be disclosed under general accounting principles and the Securities and Exchange Law, not to what they had witnessed or heard. Therefore, they should be experts rather than witnesses or expert witnesses under such circumstance. It was further held in this Decision that the original trial court elected to summon the individuals as witnesses to testify in court, informed the witnesses of their obligation to sign an affidavit and of the penalty for perjury, and asked them to read the affidavit aloud before they gave their signatures. The litigation procedure followed by the original trial court was not appropriate. Since the expert opinions did not follow the statutory procedure, they were certainly not lawful evidentiary materials. The original decision which relied on such expert opinions for its determination certainly violated relevant laws and regulations. Therefore, the original decision was reversed and remanded.
Frank Sun
The Supreme Court rendered the 105-Tai-Shang-1948 Criminal Decision of August 4, 2016 (hereinafter, the "Decision"), holding that expert witnesses are both witnesses and experts and should be asked to sign the affidavit for a witness and/or additionally the affidavit for an expert, depending on the circumstance.
According to the facts underlying this Decision, the Appellants were found in the original decision to be guilty of jointly and continuously committing the offense of false reporting and disclosure under Article 171, Paragraph 1, Subparagraph 1 of the Securities and Exchange Law. Dissatisfied, the Defendants filed this appeal.
According to the Decision, although expert witnesses are both witnesses and experts, still what is stated is based on the facts they have experienced and is often irreplaceable. Therefore, they are certainly witnesses subject to requirements for witnesses. Still, they are experts if their statement incorporates their expertise and conveys their opinions concerning the current facts they have observed. Therefore, they should be asked to sign the affidavit for a witness and/or additionally the affidavit for an expert separately. If the legal procedure is violated or breached, the testimony or expert opinion does not comply with the legal procedure and is certainly not lawful evidence.
It was further pointed out in this Decision that the original decision which found the Appellants had jointly and continuously committed the offense of false reporting and disclosure cited the testimonies of auditors from the Accounting and Audit Section of the Securities and Futures Bureau (hereinafter, the "SFB") of the Financial Supervisory Commission. However, the testimonies merely stated their expertise and pertained to issues such as the scope of material matters and whether anything which affects an investor's decision is deemed material in the requirement that material matters relating to transactions with related parties shall be disclosed under general accounting principles and the Securities and Exchange Law, not to what they had witnessed or heard. Therefore, they should be experts rather than witnesses or expert witnesses under such circumstance. It was further held in this Decision that the original trial court elected to summon the individuals as witnesses to testify in court, informed the witnesses of their obligation to sign an affidavit and of the penalty for perjury, and asked them to read the affidavit aloud before they gave their signatures. The litigation procedure followed by the original trial court was not appropriate. Since the expert opinions did not follow the statutory procedure, they were certainly not lawful evidentiary materials. The original decision which relied on such expert opinions for its determination certainly violated relevant laws and regulations. Therefore, the original decision was reversed and remanded.
