Politics & Law
Taiwan begins Citizen Judge programme
New chapter in Taiwan’s criminal court system
By John Eastwood, Heather Hsiao, Joanne Lee, Erin Hopkins, Laura Tsao
Taiwan launched its Citizen Judge programme on 1 January 2023. The establishment of the Citizens Judge Act in July of 2020 represents a sweeping reform to Taiwan’s judiciary system that will affect how criminal cases are handled, including cases involving foreign nationals. Previously, criminal cases were heard and decided only by professional judges. From the beginning of the year, six selected citizens will join professional judges in applying the law and meting out sentences in the first instance in specific criminal cases. These six selected laymen and the three professional judges will be required to have equivalent roles in criminal proceedings, and the judgments made therewith are binding.
The purposes of this new citizen judge system are to increase transparency of the judiciary in Taiwan, reflect the public's attitudes toward laws, enhance public trust and confidence in, and understanding of, the judiciary and affirm the principle of popular sovereignty. Different from the jury trials in common law legal systems, citizen judges will work with the professional judges as a team, deciding not only on whether the defendant is guilty or not guilty but also what sentences to give to the offender.
Taiwan citizens have the right and obligation to serve as citizen judges in accordance with the law, except otherwise expressly excluded by the law or where granted with the right of refusal by the law.
In order to qualify as a citizen judge candidate, a person must be a Taiwan national, be at least 23 years of age, have at least a junior high school education (or elementary school education for people enrolled in school before 1968), and have resided in the jurisdiction of the court for at least four months. There are also restrictions on serving as citizen judges: people with criminal records, on-duty members of the military, policemen, and lawyers cannot serve as citizen judges. Being the president or vice president also bars one from serving as a citizen judge.
Candidates are randomly selected by the local government of the jurisdiction, and will be subject to further selection by a designated group of professionals including a judge, a prosecutor, an attorney, a government delegate and a legal professional (such as a law professor). After the examination, final determination of the citizen judges will be made by the court in addition to both parties in the case, who will reserve the right to raise objections over the selections up to a maximum of four candidates.
Candidates can refuse to serve as a citizen judge or a substitute citizen judge under the following conditions: if they are over the age of 70, are a teacher or a student at a school, hindered from serving by to serious illness or injury, if they are the main caregiver of their family, or if the performance of such duties of may lead to a serious effect on the physical or mental health of the candidate, if he/she is facing or recuperating from natural disaster, or if there are significant difficulties in performing such duties due to major life, work, or family related reasons. If a person has already served as a citizen judge within the past five years, he/she may also refuse to serve as a citizen judge again.
Failure to perform the duties of a citizen judge without justified reasons may lead to administrative penalties. As it is a civic duty, citizen judges are entitled to paid official leave and will be compensated NT$3,000 a day for their services, in addition to commuting expenses.
Under this new system, a panel of six citizen judges and three professional judges will adjudicate cases of intentional criminal acts that have resulted in death. Cases that warrant prison sentences of 10 years or more are slated to be judged by the teams of six judges starting on 1 January 2026. Guilty verdicts are to be reached with the consent of at least two-thirds of the panel (including at least one professional judge). Sentences must be agreed upon by the majority of the panel (including at least one professional judge) and the death penalty requires the consent of two thirds of the judges, including at least one professional judge and one citizen judge. Cases involving minors or the Narcotics Hazard Prevention Act are out of the scope of the citizen judge programme.
Taiwan adopts a trial de novo system for ordinary appealed criminal cases in the second instance. That is to say, the appeal courts review all the claims and evidence presented by both parties and are not binding by any determination made by the courts in the first instance. However, to respect the outcome determined together by the citizen judges and professional judges in the first instance, for the cases involving citizen judges in the first instance, the appeal courts shall properly exercise authority, taking the purposes of the system of citizen participation in criminal trials into consideration. In principle, requests to initiate an investigation of new evidence are not allowed unless the circumstances fall under the provisions in the Citizen Judges Act.
Taiwan citizens, foreigners residing or staying in Taiwan or employers in Taiwan should ready themselves for the effects of citizen participation in judicial decision making. Two important takeaways from this are that citizen judges will be handling criminal cases that will also include those involving foreign nationals. It would be an important issue to make sure that legal rights of the foreign nationals within the new judicial system are safeguarded and that differential treatment is not present when factual evidence and sentencing is determined. Moreover, perhaps an aspect of this change that is of more immediate consequence to companies with employees in Taiwan, even foreign companies, must be prepared to provide employees with paid official leave when they are called to serve as citizen judges and that they must not be penalized for doing so. For example, a typical court case for homicide or a DUI-related death would require 3-5 days of continuous service from citizen judges, and companies would be required to pay their employees for the duration of that leave. All of the above will require adjustments from employees and employers alike, as embracing this new facet to civic duties in Taiwan is sure to bring forth much change.
John Eastwood and Heather Hsiao are partners in the Eiger law firm; Joanne Lee is an associate, and Erin Hopkins and Laura Tsao are paralegals.
The Eiger firm regularly helps multinationals and SMEs with litigation matters in Taiwan.
