Discussion on the Legitimacy Source of Court Judge in Taiwan

Senior, Dep. Of Law, NTU B95A01150 Chia-ching Chen

Report on Judicial System

Outline

• Origin of this report

• Proposition of the Question– Definition, Issue and Limitation

• Examples in foreign countries– Germany, Italy, Japan, USA, France and Korea

• Democratic Legitimacy of Justice

• Examination from Public Choice Theory

• Conclusion

omnis anima potestatibus sublimioribus subdita

sit non est enim potestas nisi a Deo quae

autem sunt a Deo ordinatae sunt

－ APOSTOLI AD ROMANOS EPISTULA

SANCTI PAULI 13:1

Origin of this report

• 2007 .7th Resolution of Criminal Court in Supreme Court.

• “the Expectation of People”

• Different from Legislature & Execution

• Constitution Art. 80: Independent to judge

DEMOCRATIC LETIGIMACY v. IMPARTIAL JUST

Proposition of the Question

• Definition of “JUDGE”

• Where do they come from?

• Issue I: Can Judges be Elected?

• Issue II: How to Locate them?

• Discussion Pattern and Limitation

Definition of “JUDGE”

• “Judge”:

– Grand Justice NOT included

– District Court,

– High Court,

– Administrative Court Judges are included

Where do they come from?

• The Examination by the Ministry of Examination

• The Training by “Judges and Prosecutors Training Institute”, Ministry of Justice

Nominated by “Examination”?

Appointed by “Execution”?

• President: Elected by the People

• Legislators: Elected by the People

• Judges?

– No democratic, institutional way to respond to suspect that raised from the heart of the people

– Resolutions?

indirect, un-independent

– “Judges Law”

internal, not external

Interaction between Judge and the People

By “Social Movement”???

Issue I: Can Judges be Elected?

• No Democratic Legitimacy

• Professional Judgment bows to populist?

v.s.

• Direction Election shakes Impartial Judgment?

Issue II: How to Locate them?

• Bureaucracy?

• Electoral Officials?

• Professional Experts?

• Priest?

Discussion Pattern and Limitation

• Pattern:

– Comparative Law

– Public Choice

• Limitation:

– No pragmatic data and enough literature review

– Not considering the variable of Constitutional Court

– Solution without adjust from other two sectors

Examples in foreign countries

• Parliamentary System– Germany

– Italy

– Japan

• Presidential System– USA

• Semi-Presidential System– France

– Republic of Korea

Bundesrepublik Deutschland

Bundesgerichthof, BGH

Bundesverwaltungsgericht, BVerwG,

Bundesfinanzhof, BFH

Bundesarbeitsgericht, BAG

Bundessozialgericht, BSG

Bundesverfassungsgericht, BVerfG

For Supreme Courts: GG Art. 95 II

Minister of Managing Minister

Richterwahlausschuß

For State Courts: GG Art. 98 IV

Repubblica Italiana

luogo per concorso

OR

del Consigliosuperior dellamagistratura

日本国

• 最高裁判所長官 (裁判所法 Art. 39)

• 最高裁判所判事 (日本国憲法 Art. 79 I, II)

内閣指名

天皇任命

国民の審査

内閣任命

国民の審査

• 下級裁判所の裁判官

内閣任命

任期を十年とし、

再任されることができる。

但し、法律の定める年齡に達した時には退官する

but

The United States of America

• Federal System:

• State System

PresidentAppointment

SenateConsent

Election Appointment Others

République française• Magistrats du siège à la cour de cassation et

Premier président de cour d'appel

• autres magistrats

Le Conseil supérieurde la magistrature

Ministre de la justice

consulté

대한민국

• 大法院長 대법원장

• 大法官대법관

국회의

동의를대통령이

임명한다

대법원장의

제청으로국회의

동의를

대통령이

임명한다

• 其他法官대법원장과 대법관이 아닌 법관은

대법관회의의

동의를대법원장이

임명한다

Conclusion

• Three patterns:

– Special Committee

– Executive and Legislative

– Others

Democratic Legitimacy of Justice

• Judicial Power of the Three Powers

• The Democratic Linkage

Judicial Power of the Three Powers

• Four characteristics of Judicial Power:

–Passiveness

–Neutrality

–Correctness

–Authority

• Passiveness:

– No direct interaction without petition

• Neutrality

– High democratic threshold

• Correctness

– Stability, Protection of the Constitutional Order

• Authority

– Where does it come from? Faith?

The Democratic Linkage

• Direct Election

• Appointment:

President Prime Minister

People President

People Parliament

• Supervision

ElectoralOfficials

Bureaucracy

Judicial Power?

• Direct Election: X

• Direct Supervision: X

• Appointment and Consensus: maybe

Examination from Public Choice Theory

• Optimize the choice where the total cost is

the lowest

• There are two kinds of cost in collective action including voting or decision making.

–External Cost

–Decision Making Cost

ExternalCostIn any case, participation in collective activity is costly to the individual, and the rational man will take this fact into account at the stage of constitutional choice.

DecisionMakingCostAt the lower levels there is apt to be little real bargaining.As unanimity is approached, individual investment in strategic bargaining becomes highly rational, and the costs imposed by such bargaining are likely to be high.

TotalCostthe individual will choose the rule which requires that K/N of the group agree when collective decisions are made

When it comes to Constitution…

The upper curve, that of external costs, remains relatively high throughout its range over the various decision-making rules until

it bends sharply toward the abscissa when near-unanimity becomes the rule.

More fear on the result of

the decision

The lower curve, that of decision-making costs, may not, in such circumstances, be a factor at all.

More willing to take

collective action

More External Cost,

Less Decision Making Cost

Not just Counter-Majority,

But also Including More Minority

Conclusion