January 2018
The Code of Criminal Procedure was amended where a misdemeanor case in which a not-guilty first instance decision is overturned by a second instance guilty decision may be remedied on an exceptional basis by appealing to the third instance court (Taiwan)
2017.11.16
Frank Sun
The President promulgated Articles 253, 284-1 and 376 of the Code of Criminal Procedure (hereinafter, the "Law") as amended via the Hua-Zhong-One-Yi-10600140511 Directive of November 16, 2017. The focus of these amendments lies in the revision that a misdemeanor case in which a not-guilty decision first instance decision is overturned by a second instance guilty decision may be remedied on an exceptional basis by appealing to the third instance court.
Under Article 376 of the Law before amendment, offenses which may not be remedied by appealing to the third instance court include: (1) offenses with a maximum punishment of no more than three years imprisonment, detention, or a fine only; (2) offense of theft specified in Articles 320 and 321 of the Criminal Code; (3) offense of embezzlement specified in Article 335 and Paragraph 2 of Article 336 of the Criminal Code; (4) offense of fraud specified in Articles 339 and 341 of the Criminal Code; (5) offense of breach of trust specified in Article 342 of the Criminal Code; (6) offense of extortion specified in Article 346 of the Criminal Code; and (7) offense of swag specified in Paragraph 2 of Article 349 of the Criminal Code. However, these amendments add an exceptional requirement to the same article where a case in which a not-guilty, dismissal, rejection or erroneous jurisdiction first instance decision is reversed and overturned by a guilty decision rendered by the second instance court may be appealed by the defendant or a person who may appeal for the benefit of the defendant. In addition, Paragraph 3 is added to stipulate that a case in which the original decision is reversed and remanded by the third instance court shall not be appealed to the third instance court.
In response to the above amendments and to accommodate the revision of Article 253 of this Law, if a prosecutor believes that it is more appropriate not to prosecute the cases set forth in Article 376, Paragraph 1 as amended in reference to the matters set forth in Article 57 of the Criminal Code, a not-to-prosecute disposition may be rendered. In addition, Article 284-1 as amended provides that a collegial trial should be conducted in the first instance except for the summary trial procedure, summary procedure and cases involving offenses set forth in Article 376, Paragraph 1, Subparagraphs 1 and 2.
Frank Sun
The President promulgated Articles 253, 284-1 and 376 of the Code of Criminal Procedure (hereinafter, the "Law") as amended via the Hua-Zhong-One-Yi-10600140511 Directive of November 16, 2017. The focus of these amendments lies in the revision that a misdemeanor case in which a not-guilty decision first instance decision is overturned by a second instance guilty decision may be remedied on an exceptional basis by appealing to the third instance court.
Under Article 376 of the Law before amendment, offenses which may not be remedied by appealing to the third instance court include: (1) offenses with a maximum punishment of no more than three years imprisonment, detention, or a fine only; (2) offense of theft specified in Articles 320 and 321 of the Criminal Code; (3) offense of embezzlement specified in Article 335 and Paragraph 2 of Article 336 of the Criminal Code; (4) offense of fraud specified in Articles 339 and 341 of the Criminal Code; (5) offense of breach of trust specified in Article 342 of the Criminal Code; (6) offense of extortion specified in Article 346 of the Criminal Code; and (7) offense of swag specified in Paragraph 2 of Article 349 of the Criminal Code. However, these amendments add an exceptional requirement to the same article where a case in which a not-guilty, dismissal, rejection or erroneous jurisdiction first instance decision is reversed and overturned by a guilty decision rendered by the second instance court may be appealed by the defendant or a person who may appeal for the benefit of the defendant. In addition, Paragraph 3 is added to stipulate that a case in which the original decision is reversed and remanded by the third instance court shall not be appealed to the third instance court.
In response to the above amendments and to accommodate the revision of Article 253 of this Law, if a prosecutor believes that it is more appropriate not to prosecute the cases set forth in Article 376, Paragraph 1 as amended in reference to the matters set forth in Article 57 of the Criminal Code, a not-to-prosecute disposition may be rendered. In addition, Article 284-1 as amended provides that a collegial trial should be conducted in the first instance except for the summary trial procedure, summary procedure and cases involving offenses set forth in Article 376, Paragraph 1, Subparagraphs 1 and 2.
