Emily Chueh
The Supreme Court rendered the 109-Tai-Shang-2748 Decision of June 3, 2020 (hereinafter, the “Decision”), holding that if the defendant’s mediation with the victim has been successful and the court believes that there is no need to refer to the “restorative justice” procedure, even though the court fails to explain this in the decision reasons, this would still be different from the legal violation for insufficiency of grounds.
According to the facts underlying this Decision, Defendants A and B and B’s girlfriend C agreed among themselves to visit a night market together. Since B borrowed A’s motorcycle, A rode B’s motorcycle, while B rode A’s motorcycle with C. A should have heeded the situation in front of his vehicle and taken necessary safety precautions and was objectively not unable to do that. However, A moved forward rashly without heeding the situation in front of his vehicle, while D, who was riding a motorcycle, was also careless and failed to yield to the vehicle going straight and turned left abruptly. Unable to evade, A crashed with D, resulting in D’s injuries. Although A was obviously aware that rescue or other necessary measures should be taken immediately when his accident had caused the injuries of another person, A had a criminal intent to hit and run and escaped while abandoning his vehicle without inspecting D’s injuries, providing aid, calling the police or an ambulance, or leaving any contact information. Later when B and C went by the accident location, they found that the motorcycle ridden by A had been involved in the accident but A was nowhere in sight. They subsequently found A somewhere near the accident location. The three of them had not come back to the accident location and walked the motorcycle back to B’s residence until this accident was handled by the police and an ambulance. The police arrested B, the owner of the motorcycle, on suspicion of negligent injury and hit-and-run offenses and referred him to the district prosecutors’ office for investigation. The above circumstance had not been exposed until B’s and C’s testimonies that A caused the accident in the course of the investigation.
According to the Decision, Article 248-2 and Article 271-4 of the Code of Criminal Procedure, which were adopted on December 10, 2019 and promulgated on January 8, 2020, institutionalize the “restorative justice” by additionally stipulating that a prosecutor may refer a case to mediation in the course of investigation or, upon application by the defendant or victim, refer it to an appropriate agency, institution or organization for restoration. Before the oral arguments are concluded, the court may also refer a case to mediation or, upon application of the defendant or victim, refer it to an appropriate agency, institution or organization for restoration after soliciting the opinions of the prosecutor, attorneys, defenders and assistants. In view of the legislative reasons for Article 248-2 and Article 271-4, whether a prosecutor or court will initiate the “restorative justice” procedure should generally take into account the willingness of the defendant, victim or his/her family to engage in mediation and the possibility and appropriateness of a successful mediation. In addition, the current settlement (mediation) procedure may also be harnessed to provide some remedies or psychological restoration to the victim. Moreover, the outcome of referring a matter to “restorative justice” and of completed restoration is only for the reference of the prosecutor in determining if this matter will be prosecuted and of the court in sentencing. Unless the case is serious and it is obviously necessary and possible to go through a restoration procedure, if the defendant has successfully mediated (settled) with the victim and the court does not consider it necessary to further refer this matter to the “restorative justice” procedure, even though the court fails to provide an explanation in the decision reasons, this would still be different from legal violation for insufficiency of grounds.
It was further indicated in the Decision that the Appellant had requested in his statement on the reasons of appeal that the original trial court should arrange a mediation with the victim in the spirit of restorative justice, and the original trial court had inquired about the victim’s willingness to engage in the mediation first upon the Appellant’s motion. After the victim indicated in his reply that he did not wish to mediate with the Appellant, mediation was still concluded at the Tainan Summary Court of the Tainan District Court. Therefore, since the original trial court, which held that the mediation in this case had been successfully completed and imposed a lighter criminal penalty relative to the first instance trial, explained this in the decision without proceeding with the futile “restorative justice” procedure, there was certainly no legal violation for insufficiency of grounds. Since the gist of the appeal alleged that the original decision was illegal on such basis, the appeal should be dismissed.