|Prosecutors Shall Bear the Burden of Proof with the Obligation for Providing Clear Explanations of “Facts for Repeated Offending” and “Crimes that Should Be Aggregated”: Centered on “110 Year Taishang Dazi No. 5660” Ruling of the Supreme
Court of Taiwan
|Modified Adversary System, Repeated Offending, Burden of Proof, Provide, Rule of Strict Proof|
|11 NCTU L. REV., September 2022, at 95-134.|
|Although the “modified adversary system” has been adopted by Taiwan’s criminal practice for a long while, somewhat extents of the “inquisitorial system” remain. In particular, the “inquisitorial system” still shadows matters disadvantaged to the defendant. Using a repeated offender as an example, in Taiwan’s judicial practice, it is believed that “facts for repeated offending” and “crimes that should be aggregated” are basic matters that the court shall know for determining the facts and applying laws. Thus, it is believed that the court “shall” investigate these basic matters ex officio. However, the “110 Year Taishang Dazi No. 5660” ruling of the Supreme Court of Taiwan, which incorporated the judicial reform rationale given in “Judicial Yuan’s interpretation No. 755,” surprisingly stated that, regarding the above two basic matters for the repeated offenders, prosecutors shall bear the burden of proof with the obligation for providing clear explanations. Though this ruling may be merely a small step for the Taiwan Supreme Court to get rid of the “inquisitorial system”, it is enough to push the Taiwanese judicial reform to make a giant step.