A Response to Margaret Lewis by Professor Jaw-perng Wang

by Jaw-perng Wang

[Jaw-perng Wang is Professor of Law at National Taiwan University]

I am very impressed that a foreign scholar, especially a common-law trained one, could have a precise picture of Taiwan’s criminal procedure and its history and recent reforms.  Without spending tremendous time and effort, an article that accurately and meticulously reports Taiwan’s criminal procedure, like this one, could not possibly be produced.  In addition, I must confess that several parts of the detailed report of Taiwan’s practice did not come to my attention until after reading this article.  It is the best article in American literature reporting Taiwan’s criminal procedure in sense of its depth, breadth, and accuracy.

I personally like Parts IV and V of this article the most.  In Part IV, the article provides concrete proposals for Taiwan to achieve the desired adversarial model.  It divides cases into serious offenses and non-serious offenses for different proposals.  For serious offenses, the article proposes that, when the prosecutor seeks pretrial detention following arrest, the court could appoint counsel at this preliminary stage.  When the prosecutor does not seek pretrial detention, a brief initial appearance could be used to appoint counsel.  I believe the proposal is absolutely right in theory.  As a matter of fact, some scholars and defense lawyers made the same requests in Taiwan.  However, the government simply turned a blind eye to it.  As to the “initial appearance,” it might be common in common law countries, but it is unfamiliar or unheard of in civil law countries.  The great, great majority of the people have no idea of this concept.  Nonetheless, this article’s proposal could cause the people in power in Taiwan to rethink these problems.

In Taiwan’s legal history, we always learn lessons from foreign countries, such as Germany, Japan, and the United States.  When we devoted our efforts to reforming the criminal process in Taiwan, we moved bravely to get rid of wrong aspects and adopt right ones.  However, it is impossible to be successful in every aspect of reforms no matter how hard we plan and try.  In close observation of Taiwan’s experience, this article raises some very good and insightful questions and proposals that Taiwan should reconsider and adopt.  The same might apply to other countries that have already committed to incorporating adversarial reforms.  It is great to know that Taiwan’s experience could offer some contributions to the world of comparative law.

http://opiniojuris.org/2009/04/17/a-response-to-margaret-lewis-by-professor-jaw-perng-wang/

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