Was Unbiased Judicial Discretion Exercised in the “Abian Case”?

◎ 黃瑞華
Huang Rei-Hua


Former President Chen Shui Bian was found guilty and sent to jail for the “Long-Tan Land Deal Case”. In this Case, the Court found that “ Wu Shu-Jen brokered a deal to help Koo’s family to sell a parcel of land to the government at the market price and received NT$2 billion dollars from Koo’s family.” Wu stated that the payment to her was her agent fee for brokering the deal. However, the Taiwan High Court decided that Wu brokered the deal through the influence of Chen’s presidential power. Therefore, Chen and Wu committed the “crime of accepting bribes to influence the action of the official in the discharge of their public duties and powers.”



The guilty verdict of this Case (as well as a separate case related to accepting money from Chen Min-Shin) depends on the definition of “the action of the official in the discharge of their public duties and powers.” In the past, the Taiwan High Court had adopted the “Legal Definition of Public Duties and Powers” based the precedents of Case#24TU3602 and Case#58TU884. In the decisions for many other cases (e.g., Case#72TU2400, #73TU3273, #98TU395, and #99TU940), the courts specifically stated that the definition of public duties and powers must be within “those specifically defined by law”. In these precedents, the courts also clearly stated “if illegitimate kickbacks are not related to the legally defined public duties and powers, they should not be considered as bribes (Case#70TU1186).” Based on these precedents, there should be no crime of “accepting bribes to influence the action of the official in the discharge of their public duties and powers” in the “Abian Case” based on the legal definition of presidential duties.



Presidential duties and powers are clearly specified in the current ROC Constitution and its Amendments. The decision to purchase private lands by the government is not within the Presidential duties and powers defined by law. If the legal rules and resolutions of legal disputes applied in those precedents are used by the Taiwan High Court for the “Abian Case”, the crime of “accepting bribes to influence the action of the official in the discharge of their public duties and powers” was not committed.



However, the Joint Court judges, Hsieh Jein-Hsiung, Chen Shi-Hsiung, and Wu Sin-Min, abandoned the “Legal Definition of Public Duties and Powers” applied in the previous legal rules and common resolutions of their own courts (Case#95TU3218 and Case#96TU48) and adopted a different interpretation based on “Presumed Actual Influence”. In this new interpretation, “anything which is related to or can be influenced by the duties and powers of an official” is considered within the legally defined “Duties and Powers”. With this new interpretation, this Joint Court reached the final guilty verdict against Chen.



However, it is subject to debate regarding what constitutes a “Presumed Actual Influence”. This uncertainty renders the “Duties and Powers” of an official ambiguous and not legally defined, which is a direct violation of the rules applied in the above cited precedents in which “Duties and Powers” are limited only to those defined by law. Using “Purposive Approach to expand the meaning of law” and subsequently expanding the meaning of “Duties and Powers” are against the Principle of Legality in defining a criminal offense. This Principle states that “the purposive approach in statutory interpretation should not be used to expand the meaning of law unfavorable to the defendant.”



There were procedural controversies in how the High Court decided the “Abian Case”. It is common for the High Court to debate and conduct cross-examination to reach a resolution for legal disputes. When the High Court abandoned the “Legal Definition of Public Duties and Powers”, which were applied in the previous legal rules, and instead adopted a different interpretation based on “Presumed Actual Influence”, it resulted in a “highly significant change in legal discretion”. Therefore, the High Court must allow debate and cross-examination before making this change to protect the rights of defendants. Because the High Court unilaterally adopted the new interpretation of “Presumed Actual Influence” without allowing debate and cross-examination and subsequently found Chen guilty based on the new interpretation, this guilty verdict is a case of “Surprise Judgment” or “rushing to judgment without due hearing process.”



The records show that there are only seven cases for which Taiwan High Court issued guilty verdict by itself. Six of these cases are simple and clear-cut. However, this “Abian Case” is highly complicated based on the fact that the ratio decidendi contains over 80,000 words. With a Case this complicated, the High Court, however, did not consider the Case as a whole but issued guilty judgment on only parts of the Case. The procedure that the High Court followed to issue its ruling for this Case is indeed highly unusual.



The legally assigned judge for this Case was removed by an executive order in the midst of the trial at the District Court. Moreover, the High Court decided this Case by discounting the precedents and in violation of Article #1 of Criminal Law, which states “A punishable act must be within those defined by the Statute at the time of the act”. Judging from the fact that the High Court violated common law in its ruling, it is fair to ask the very question:

“Was Unbiased Judicial Discretion Exercised in the Abian Case?”


(Author is a Judge and a Chief Justice of the Taiwan High Court)
April 16, 2012


( Note:It was thanks to Prof. Jay Tu to tranlate this article into English. - Taiwan eNews)


Taipei judge demoted for saying Chen Shui-bian did not get a fair trial∣◎ Michael Richardson|台灣e新聞