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The Principles of the Prosecutorial Power

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  • Last updated:2019-05-17
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        The Principle of Substantive Discovery of Facts
        In Taiwan, although the defendant is not prohibited from gathering evidence for himself, this power is by law given only to the prosecutor and the police. Because the law does not provide any investigative means for the accused, the defense attorney usually does not play an active role in criminal investigations. Her role is very much limited to making sure that the client's rights are not intruded on and to suggest or pass any evidence to the prosecutor that might be favorable to the defense. In addition, because many suspects do not have counsel to represent them, they have to depend on the prosecutor's fairness in gathering evidence for them.
        The other important distinctive feature of the Taiwanese criminal investigative system is that, as in many other civil law countries, the prosecutor is deemed as an impartial magistrate and a dominant figure in investigative phase, not a contestant. The Taiwanese prosecutor's investigations are considered to be conducted in her "judicial" capacity. The prosecutor, who is responsible for the policies and directions of investigations, has no personal or professional interest in the outcome. She is expected both to seek out facts and to protect the rights of individuals. The general attitude of the prosecutor is that she is performing a duty to the public, and must act as a neutral fact finder in deciding how to proceed during an investigation.
         In Taiwan, the investigation of the prosecutor should serve not only the prosecution but also the defense. The purpose of the investigation is to find out what happened, not to develop a case for either side. The prosecutor is supposed to gather all possible relevant evidence no matter whether it supports the prosecution or not. If he learns some clues leading to potential evidence that could prove the innocence of the accused or reduce his punishment, he has the responsibility to pursue that evidence. The suspect may also request the prosecutor to gather evidence for her. Unless it is determined to be unnecessary, the prosecutor may not reject it.


        The Principles of Compulsory Prosecution and Discretionary Prosecution
        Uniform treatment of offenders under the same criminal statute is one of the most emphasized values in Taiwan. The Code of Criminal Procedure is designed to reduce the human element in the administration of justice to its reasonable minimum. Art. 251(1), Code of Criminal Procedure, reads: "A public prosecution shall be initiated if evidence obtained during investigation is sufficient to show that an accused is suspected of having committed an offense." This principle of compulsory prosecution demands that prosecutors file criminal charges in their strongest and most inclusive form that the evidence can support. Prosecutors are supposed to act in strict accordance with the law. Although different prosecutors may vary in their background and attitudes toward a specific crime, big variations in the way that different prosecutors enforce the same law are intolerable. When the evidence that the defendant has committed a crime is clear, prosecutors are without discretionary power to withhold prosecution for crimes punishable with death penalty, life imprisonment, or with a minimum punishment of imprisonment for more than three years. Neither can prosecutors in Taiwan reduce charges for any crimes. Otherwise the decision will face suspicion from superiors and from the outside and be overruled by the high prosecutors office or corrected by the court. Special considerations, such as confession, cooperation and personal special circumstances of the accused may affect only prosecutors' sentencing recommendations and in principle have no bearing on their charging decisions.
       However, some violations occur in circumstances in which there is no significant impact on the public or any individual. Furthermore, realistically, there are not enough judges and prosecutors to deal with every criminal act. Were the principle of compulsory prosecution applied without limit, the prosecutor offices and courts would be inundated with more suits than they could handle. Therefore, in Taiwan, the principle of compulsory prosecution has some exceptions.
       First, because the Penal Code covers only general categories of conduct, it cannot distinguish between a petty thief who is on his way to becoming a robber and a thief who succumbs only to a brief impulse. The prosecutor is thus vested with the responsibility to decide which minor cases will be charged. According to Art. 253(1), Code of Criminal Procedure, if the guilt of the actor is a minor crime as specified in law, after considering factors such as the personality, age, environment and post-crime attitude of the offender and the circumstances and the gravity of the offense, the prosecutor can decline to prosecute the case if the accused has repented. This process is called "easy dismissal" or "easy disposition." The Taiwanese category of minor crimes that are eligible for easy dismissal is so broad that it includes many felonies under American law, such as battery, larceny, receiving stolen goods, fraud, threat, and embezzlement.
       Second, Article 253-1, Code of Criminal Procedure, reads: "If an accused has committed an offense other than those punishable with death penalty, life imprisonment, or with a minimum punishment of imprisonment for more than three years, if the public prosecutor, after considering the matters specified in Article 57 of the Criminal Code and the maintenance and protection of public interest, deems that a suspended prosecution is appropriate, he may make a ruling to render a suspended prosecution by setting up a period not more than three years and not less than one year."


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