The Case Flexibility Compromises Stability of Law: A Decade Review of Taiwanese Supreme Court Criminal Judgment

林鈺雄(Yu-Hsiung Lin)

《東亞法學評論》 1卷1期 (2010/03) Pp. 25-34

https://doi.org/10.29432/EALJ.201003.0003

並列摘要

To trace the trend of Taiwanese criminal procedure, practical cases made by Taiwan Supreme Court (TSC) during one decade (2000-2007) will be examined in this paper. Through the examination of TSC's judgments towards some significant issues, such as exclusionary rule, agent provocateur, etc., the following facts are discovered. First, to maintain wider flexibility, TSC prefers to take rather vague standards when dealing with individual cases. Second, even in the same period, the different opinions from separate courts in TSC are often against each other. As a result, the stability of law and the predictability of sentence are sacrificed. Therefore, not only the transaction costs in litigations are increasing, but TSC also has to bear a heavy burden caused by frequent appeals. To reduce the amount of appeals, the authority eventually chose to take legislative approaches, which aid the restriction of appeal, however, may violate the rights to judicial remedies. As a solution, the author gives his point of view: It is particularly necessary for TSC to reconsider its long-term neglect of the stability of law. Besides, a system inside TSC, which can standardize the currently inconsistent views of its separate courts, must soon be established by the legislative authority.

並列關鍵字

Flexibility in individual cases ； Stability of law