The Judicial Yuan rendered Judicial Interpretation No. 752 of July 28, 2017 (hereinafter, the “Interpretation”), holding that the legal requirement that if the original not-guilty decision is reversed with a guilty decision rendered in the second instance criminal trial, the accused shall not appeal to the third instance court shall be unconstitutional and invalid, and cases which have not become final may be appealed.
According to the Interpretation, Article 376, Subparagraphs 1 and 2 of the Code of Criminal Procedure provide: “Once judged by the court of second instance, cases involving the following offenses are not appealable to the court of third instance: (1) offenses with a maximum punishment of up to three years imprisonment, detention, or a fine only; (2) offense of theft specified in Articles 320 and 321 of the Criminal Code…” The requirement that where a guilty first instance decision is rendered, if the appeal to the second instance court is rejected, or if the original decision is reversed with a guilty decision rendered, no appeal may be filed with the third instance court falls within the scope of legislative formation and does not violate the gist of protecting the litigation rights of the people under Article 16 of the Constitution. However, this Interpretation further pointed out that the requirement if the second instance trial court reverses a not-guilty original decision with a guilty decision rendered, the accused shall not appeal to the third instance court fails to provide at least one appeal remedy in violation of the gist of protecting the litigation rights of the people under Article 16 of the Constitution. Therefore, this requirement shall become void on the promulgation date of this Interpretation.
It was also pointed out in the Interpretation that for the cases mentioned in the above two subparagraphs, if the not-guilty original decision is reversed with a guilty decision rendered, and if the appeal period has not expired on the promulgation date of this Interpretation, the accused and the person who may appeal in the interest of the accused may appeal pursuant to law. The original second instance court shall instruct the accused to submit the gist of third instance appeal to the court within 10 days upon delivery of such ruling. If no ruling has been made for an accused who appealed before the promulgation of this Interpretation during the above-mentioned appeal period, the court shall not reject the appeal in accordance with Article 376, Subparagraphs 1 and 2 of the Code of Criminal Procedure.