A Comparative Study Of The Respective Advocacy Systems On Both Sides Of Taiwan Straits

The defendant's right to a fair trial has become an important principle in advanced countries in the world for their safeguarding the fundamental human rights of the defendant.Because the current systems of criminal procedure of the both sides of Taiwan Straits are far from perfect, providing inadequate protection to the defendant's right to a fair trial, this Thesis tries to compare, analyze and evaluate the respective advocacy systems of both sides of Taiwan Straits, and make recommendation to be used as references for future amendments to their respective Law of Criminal Procedures.This Thesis is divided into two parts: an introduction and the main text. The introduction outlines the motive of the study, the current situation under study, the development trend being studied, the premises of the study, and the result thus achieved and its methodology. The main text consists of six chapters the gist of those chapters is stated as follows:Chapter I: The Right to A Fair TrialThe concept that the defendant is entitled to the right to a fair trial originates from the ideology of natural law, due process of law and rule of law. The right to a fair trial does not refer to any single substantive practice. Rather, it refers to the comprehensive effect or request produced by the practice of numerous principles and rights, such as the principle of litigant's reciprocity status, the principle of confronting the accuser, the presumption of innocence, the right to access information, the principle of equilibrium apparatus , the right to assistance by counsel, the right to acquiring the court hearing, the principle of forbidding to make an arbitrary decision, the right to acquiringe oral hearing, and the right to effective participation in the criminal procedure.Its substantive content is stipulated in in?European Convention for the Protection of Human Rights and Fundamental Freedoms???International Covenant on Civil and Political Rights?and?Basic Principles on the Role of Lawyers?.Chapter II: The Standing of the Defender in Criminal Proceedings The defendant's right to assistance by a defender, among other defensive rights pertaining to an individual's being subject to a fair trial, is a fundamental right guaranteed by the Constitution.Defense made by the defender must be substantive, loyal to the defendant and effective; otherwise, the defendant's procedural rights and the right to a fair trial will be jeopardized.In the current criminal procedures being practiced on both sides of Taiwan Straits, the improper or unlawful restriction on the exercise of right to defense by the defendant and his defender are caused by the unclear definition of the nature, role and standing of the defender.Given that the purpose of the advocacy system is not only to protect the interests of the defendant, but also to safeguard a fair trial and the realization of just and correct penalty to achieve the functions of the national“system”, the defender should have the same status and rights of national judicial apparatus (element)as those held by prosecutors and the courts to fully exercise the right to defense.Chapter III: The Access to A Defender and the Latter's Functions at the Pre-Trial StageDespite the mode of operation of the pre-trial investigation differs from that of the judicial procedure, because the investigation on criminal facts and the collection and presentment of evidence have a significant impact on the fairness of the procedure and the correctness of the result and, furthermore, the confidential nature of the mode of investigation, the risk of the suspect's fundamental human rights being harmed in the pre-trail investigation period is much higher than that in the trial stage.In order to ensure the accused's right to a fair trial at the trial stage, preventing such right from becoming formality and shallow words, we should recognize the accused's right to a fair trial even at the pre-trial investigation stage and disallow the admission in court those evidences obtained by the investigating agency in violation of the right to a fair trial . With respect to their respective regulations concerning the right to have an access to a defender during the pre-trial period of investigation, both sides of Taiwan Straits may learn and share experience from each other and may cross references for amending their respective Laws in the future.Chapter IV: Detention and The Fair TrialDetention is the severest compulsory measure which deprives of the defendant's liberty, greatly and adversely affecting the defendant's right to a fair trial, and therefore should be used with great prudenence. Not only the grounds for detention should be clearly stipulated by law, the measure of detention should be used conforming to the principle of proportionality and only as a last resort.Because the detention systems currently used by both sides of Taiwan Straits greatly restrict and infringe upon the defendant's right to a fair trial, this Thesis proposes both sides of Taiwan Straits to take reference from the German legislation and the European Court of Human Rights judgments, expanding the defender's right to read case documents and records during the trial period to that of investigation, with the exception of the said right being restricted where sufficient facts exist to identify the risk of significant harm to key investigation scope as a result of the said reading.When and if the prosecutor has already applied for the detention of the defendant, the defender should be entitled to a fully unrestricted right of reading case documents and records during investigation, same as the one to which he would otherwise be entitled in court, to ensure that the defender can carry out effectively a substantive and effective defense for the detained defendant.In addition, in order to carry out the defendant's right to a fair trial the defender should be allowed to interview and communicate with the detained defendant freely,in a completely confidential environment wihtout being monitored and inspected.Chapter V: The Access to A Defender and the Latter's Functions at the Trial StageHaving amended twice, in 2002 and 2003 respectively, her Law of Criminal Procedures, Taiwan has allowed the defender at the trial stage certain procedural standing and rights, albeit the related supporting legal system has not been completely enacted. For the purpose ofimproving Taiwan's criminal procedure system, it is advisable that Taiwan's criminal procedure system adopt the Japanese doctrine of“charge-statement-only”, establish the pre-trial discovery system, and impose proper restriction on the timing, scope and manners of the court's power to investigateevidence.China's mainland may refer to those principles and rights embodied in the right to a fair trial by doing the following to fulfill the spirit of the right to a fair trial: (a)give the defender a more powerful right to defense, (b)duly weaken the court's discretionary power in investigating evidence, verifying evidence, and permitting the defender to ask questions, express views and make rebuttal, (c)lift the defendant's standing and rights and those of the defender in court so that the defendant and his defender are on the equal footing vis-a-vis the prosecutor both armed with the same means, (d)firmly establish the role and function of the court to be the“adjudicator”and“arbitrator”instead of a“participant”, let alone a“litigant”, of the court contest. .Chapter VI: Conclusion.In his conclusion, the author briefly reviews item by item the contents of all chapters, reviewing and pointing out the deficiencies of the current criminal systems on both sides of Taiwan Straits and making recommendation on the direction for amending the respective Laws in the future.Finally, the author emphasizes that only by safeguarding the defendant's right to a fair trial, can the criminal procedure system uncover the truth, make the verdict receptive to the defendant, creating a win-win result in uncovering the truth as well as saving judicial resources.