Taiwan’s Judicial Reform Process: East Asian Context, Democratization, and Diffusion

Abstract

In 1999, Taiwan initiated a judicial reform process that has transformed the island’s procedural laws and institutions. Judicial reform was motivated by a desire to accommodate Taiwan’s machinery of justice, inherited from an authoritarian era, to democratic society. The three leading items that emerged from the National Judicial Reform Conference were: restructuring the highest judicial body’s “position” to make it more court-like and less administrative; transforming judicial personnel policy to improve judicial independence and quality; and making criminal procedure more adversarial by enhancing the defendant’s status at the expense of the prosecutor’s. These changes signified a rebalancing of the relationship between the government and the people in favor of the latter. They also represented an update to the Continental-style machinery of justice that the Republic of China had adopted from the Japanese Empire. “Reformists” fought for deep changes, often urging the adoption of American-style procedure and institutions. “Traditionalists” argued for less radical reforms that would keep Taiwan closer to its Continental and German judicial roots. The debate over judicial reform thus resembled a contest of comparative law. At roughly the same time, Japan and South Korea also initiated strikingly similar judicial reform processes. While reform in Japan mainly aimed at reinvigorating the nation, the key cause of reform in Korea was the same as in Taiwan: a collapse of public trust in the judiciary. This chapter explains the course of Taiwan’s judicial reforms and how they can be understood in East Asian context and from the conceptual perspectives of democratization and the diffusion of law.

Keywords: Taiwan, Taiwanese law, judicial reform, democratization, East Asian law, legal diffusion, comparative law, legal transplants, judicial independence, criminal procedure, judicial politics, constitutional law, Asian law