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Intellectual Property and Commercial Court



Decision No. 2008-Xing-Zhi-Sheng-1
Date November 30, 2008
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As provided by Article 18, paragraph 2 of the Code of Criminal Procedure, the ground adequate for moving for the disqualification of a judge – “being sufficient to find that he is likely to charge his duties with bias” – usually refers to a situation where ordinary persons, from a reasonable viewpoint, have common doubt with regard to the fairness of the judge; it also requires that such doubts arise from entirely objective reasons rather than from the subjective determination of the parties. To command the progression of the proceeding is entirely the duty and discretion of the court. The court, in conducting the proceeding, may take into account the parties’ assertions and motions. However, whether the progression of the proceeding favors a party may not be used as the ground for claiming the unfairness of the adjudication, and it also may not be used as the ground to move for the disqualification of the judge based on the likelihood of bias (see Supreme Court precedent No.1990-Tai-Kang-318). The matters alleged by the motion are those related to the presiding judge order and method of investigate evidence, and his attitude in conducting the inquisition; these are not matters that he needs to consult with the other judges of the panel.Though the party may have strong feeling for these matters because they relates to his own interests, these things are not those that ordinary persons in general would consider to have reached the extent that the presiding judge cannot conduct a fair trial. The movant may not allege that the presiding judge was biased, simply on the ground of his own personal speculation. In addition, the movant alleged that the presiding judge intentionally violated the resolution by the Judicial Yuan about the defendant’s leading role in the evidence hearing, and insisted on the presiding judge’s own decision regarding whether to hear the evidence. The movant alleged that this behavior was in violation of the new system of the improved criminal procedure. The Court restates that whether to grant the parties’ motions for evidence hearing is within the scope of the court’s discretion to conduct trial according to the law, and that the existing Code of Criminal Procedure has adopted the revised adversarial system. Yet the fact that a party may request hearing of evidence in favor of himself is not in conflict with the presiding judge’s power to command the proceeding. According to the law, the presiding judge may consider the party’s request and make his own decision regarding how to conduct the proceeding, based on his professional knowledge, experiences, and the overall circumstances and evidence of the case before him. The court may state decisions regarding these requests and motions altogether in the judgment.

Related Provision Article 18 of the Code of Criminal Procedure
  • Release Date:2020-11-13
  • Update:2020-12-03