“Criminal Justice of Japan: Traditions and Reformations” Final Report1
General disbelief of the judiciary system is not unfamiliar to Taiwanese people. Gone through colonial period under Qin Dynasty and Imperial Japan, the judiciary system on this island had evolved rapidly — from patriarchal, inquisitorial Traditional Chinese ruling conducted by district magistrate, into a more modern court approach, overseen by Governor-General of Taiwan2. Chiang Kai-Shek administration established Order of Martial Law which, under the effect of Martial Law Act (戒嚴法), granted martial courts discretionary rights on criminal procedure3, exposing citizens to the threat of martial prosecution. In the era later called the White Terror, political interference further worsened the reputation of jury system. Even in nowadays, “The courts are run by the Kuomintang” is a common explanation toward unsatisfactory court verdicts, and “dinosaur judges” (恐龍法官) is what netizens would call judges names of. Where could we, as practicers of law, put our efforts, to build the trust and transparency of our jurisdiction system, demanded by public?
This report would briefly cover the differences between Japan’s practice of criminal procedure law and Taiwan’s, taking eavesdropping for example.
Eavesdropping in Practice
Communication inspection4, literally eavesdropping, discovers and collects evidence by wiretapping suspects of potential crimes. Originated in investigation agencies The technique was developed to defend against large-scale criminal organizations, especially on the track of drug dealers in Japan since 1980s. Due to its massive infringement of personal privacy, considerable debate has risen around the constitutional legitimacy of eavesdropping. Specified in Wiretapping for Criminal Investigation Related Act (犯罪捜査のための通信傍受に関する法律), wiretapping must only be practiced when critical crimes, (mostly organized homicide, drug smuggling, or weaponry trading) suspected, and the discovery of truth would render difficult without. In order to deal with the ever increasing trend of stimulant abuse, the Legislative Council (法制審議会) of Ministry of Justice concluded the act legitimate, while expanding its appliance on fraud, intimidation, illegal confinement and other victim-specific crimes in 2014.
The Communication Security and Surveillance Act (通訊保障及監察法), established in 1999 and heavily revised in 2007, regulates more than wiretapping, extending its coverage to “wired and wireless telecommunication equipment to send, store, transmit, or receive symbols, texts, images, sound or other types of information”, “mail and letters”, “speeches and conversations” (Subparagraph 1–3, Paragraph 1, Article 3), which basically includes almost all possible communication methods imposed by modern society. On the other side, the definition of surveillance also states “intercepting, wiretapping, sound recording, video recording, photographing, opening, checking, copying communications or other similar necessary methods”, neutralizing the preposed protection offered by generalized definition. The Act defines similar requirement and restrictions on wiretapping, demanding such action only be performed to “protect from unlawful intrusion, and to ensure national security and maintain social order.” Contrary to the Japan regulation, right relief is not included in the revised Act, rendering the suspect vulnerable to unlawful wiretapping. Regulations on transcription creation also lacks in the current statute.
Overall speaking, the legislative direction in Taiwan emphasizes “protection”, enlisting numerous principal statements on privacy; but since the actual practice of communication inspection (surveillance) often goes out of the boundary of written law, proper procedural protections after surveillance should be added in the future in order to realize aforementioned ideal and due process.
Criminal investigation infringes the fundamental rights of people critically, thus should be carefully performed. Some called criminal procedure codes “constitution in practice,” thus its importance demonstrated. According to Ministry of Justice of Taiwan5 and Japan6, the percentage of suspects being prosecuted in 2012 can be categorized as following7:
|Crime||Taiwan (prosecuted %)||Japan (prosecuted %)|
|Public Threat / Setting Fire||(54.55)||45.7|
|Drug / Stimulant||55.12||83.3|
The five predominant crimes prosecuted in Taiwan were robbery, obscenity, gambling, weaponry, and domestic violence (not shown in the chart.) In comparison, the predominant crimes in Japan were death and injury caused by dangerous driving, stimulant abuse, bribery (not shown in the chart), obscenity distribution, and public obscenity. The two nations share a common pattern of higher prosecution rate on obscenity-related crime, which could be possibly caused by (i) the simplicity of facts involved in cases, and (ii) low social tolerance toward obscene materials or acts.
It is noteworthy that, though having stricter regulation, the prosecution rate of stimulant abuse in Japan could still maintain steadily at 81.2% to 82.3% from 2007 to 2011.
From the aforementioned report shows another interesting statistic number: convicted guilty in Taiwan stands roughly 95.7% to 96.6%, or roughly 1 out of 25 was declared not guilty; while Japan is constantly referred as 99.9%, which is about 1 out of 1000. How could we convince the citizens the investigation is reliable, if we couldn’t even enforce a reasonable procedure?
We’ve learnt about Citizen Judge System (Saiban-in system, 裁判員制度) on Professor Inoue’s intriguing lecture this semester, and how “lay judges” could stitch the gap between legal profession and citizens’ will. But, despite our Ministry of Justice eagerly seeks Advisory Judge System as the solution to judicial disbelief, the general public still treat “prosecution” as “guilty”, could we really bridge the gap only through “making citizens joining the case?” Properly restricting the authority could be the only, though difficult, path to succeed.
Judicial reformation holds a long way ahead. By learning and comparing different regulation systems across nations, we believe a sturdy, trustworthy juridicial system could be more close to be established day by day.
Unless noted, the reference listed on this report will follow the format of National Taiwan University Law Journal. ↩
〈戒嚴法〉第 8 條：「戒嚴時期接戰地域內，關於刑法上左列各罪，軍事機關得自行審判或交法院審判之。⋯⋯戒嚴時期警戒地域內，犯本條第一項第一、二、三、四、八、九等款及第二項之罪者，軍事機關得自行審判或交法院審判之。」 ↩
通訊監察 in Chinese or 通信傍受 in Japanese. ↩
Numbers enclosed with parentheses indicates the data referred categorize data with lesser magnitude (e.g. “house invasion” is only shown under the category of “offense of freedom” from Taiwan’s Ministry of Justice.) ↩