The governmental system of the Republic of China differs from those of other countries in several respects. Branches of government in most democracies are three in number - executive, legislative, and judicial. The Chinese system has two additional branches - examination and control. The official name of each branch is suffixed by the term "Yuan" or "Council", Thus the cabinet is called the "Executive Yuan", the parliament the "Legislative Yuan", and so on. Most countries follow the principle of either centralism or federalism. But in China, administrative power is divided between the central and local governments according to the nature of the function.
The Constitution of the Republic of China was adopted by the National Assembly in December of 1946 and came into force a year later. But the fundamental principles of the Constitution were laid down more than three decades earlier by Dr. Sun Yat-sen, Founding Father of the Republic, in his
San Min Chu I (Three Principles of the People). The functions of China's Judicial Yuan have been in controversy for several years. The argument involves supervision of district and high courts. These are presently under the Justice Ministry of the Executive Yuan. In order to implement strict separation of powers, some jurists maintain that district and high courts should be under the direct jurisdiction of the Judicial Yuan.
One of the most interesting characteristics of the Chinese judiciary is the popularity of women jurists. On a basis of comparative population, their success probably is unequaled anywhere else. There are some 30 female judges and prosecutors and 70 court clerks. Four women judges sit on the Supreme Court. The Pingtung District Court in southern Taiwan is headed by a woman.
The Judicial Yuan is the highest organ of justice. It has a president, a vice president, and a number of grand justices, all nominated and appointed by the President of the Republic with the consent of the Control Yuan. The Judicial Yuan has four major organs: (1) the Council of Grand Justices, (2) the Supreme Court, (3) the Administrative Court, and (4) the Committee on the Discipline of Public Functionaries.
The Council of Grand Justices is peculiar to the Chinese judicial system. Its functions are interpretation of the Constitution and of laws and ordinances. In other countries, the constitution is interpreted by the supreme court or by a special court.
The council has a membership of 17 with the president of the Judicial Yuan as the chairman. The chairman also serves as the official witness at the inauguration of the Republic's President and Vice President. Candidates for grand justices must possess one of the following qualifications:
1. Judge of the Supreme Court for not less than 10 years.
2. Member of the Legislative Yuan for not less than nine years.
3. Professor of law at a university for not less than 10 years and the author of books on law.
4. Judge of an international court or the author of authoritative books on public or comparative law.
5. Profound knowledge of the law and rich experience in politics.
The number of grand justices with identical qualifications may not exceed a third of the membership of the council.
Grand justices serve a term of nine years and are eligible for reappointment. The first council of 12 members was inaugurated in Nanking in July of 1948. One of them died and several others could not attend meetings because of the Communist rebellion. Be cause the number of justices in the capital was less than a quorum, eight new members were added in March of 1949 to restore the membership to 17.
When the National Government moved its seat to Taipei in late 1949, five grand justices were able to accompany it. One became minister of justice and two others died. The council did not meet for some time owing to the lack of a quorum. In March of 1952, seven new members were appointed. With the remaining two original appointees, they constituted a quorum.
The second council convened in September, 1958, with 15 grand justices. Their terms expire this month and the third council will be inaugurated in September.
Applications for interpretation of the Constitution may be filed with toe Judicial Yuan by governments of any level, through their superior organs, under these circumstances: (1) doubts about interpretation of the Constitution and (2) disputes between two government organs, either central or local, over the interpretation of laws or ordinances. Individuals may apply for interpretation if their constitutional rights have been infringed by court action; they can raise a question as to whether the law or ordinance applied is in conflict with the Constitution.
In interpreting the Constitution, a quorum is to be not less than three-fourths of the total number of grand justices, and decisions must be approved by not less than three-fourths of the justices present.
Since the second council assumed office in September, 1958, these have been important interpretations:
1. Delegates to the First National Assembly were elected on the mainland in late 1947 for a term of six years. Since the National Government moved its seat to Taipei in 1949, no election has been held to fill the vacancies left by deaths or by inability of members to reach Taiwan. Before the opening of the third session in 1960, the Secretariat of the National Assembly and the Executive Yuan asked the council for an interpretation as to how the total membership of the National Assembly should be determined.
The council held that "The total membership of the National Assembly under the Constitution shall be computed in the existing situation on the basis of the number of delegates duly elected according to law and able to respond to the call of the meeting of the Assembly".
This Taipei Judicial Building of the Republic of China houses a wide variety of agencies concerned with justice and the law. Included are the Judicial Yuan, Council of Grand Justices, Supreme Court, Administrative Court, Committee on the Discipline of Public Functionaries, Ministry of Justice, Taiwan High Court, Taipei District Court, Prosecutor-General's Office of the Supreme Court, Prosecutor's Office of the Taiwan High Court, and the Prosecutor's Office of the Taipei District Court. In China, prosecutors are court officials. (File photo)
2. The Ministry of Justice of the Executive Yuan has jurisdiction over the district and high courts. In 1960, the Control Yuan asked the council for an interpretation as to whether the judicial system was in conflict with Article 77 of the Constitution providing that "The Judicial Yuan shall be the highest judicial organ of the State and shall have charge of civil, criminal, and administrative cases, and over cases concerning disciplinary measures against public functionaries".
The council ruled that "Article 77 of the Constitution stipulates that the Judicial Yuan shall be highest organ of the State and shall have charge of civil and criminal cases, which include those handled by the courts of all grades, and since the high court and all the courts of the various grades and the branch courts have charge of civil and criminal cases, they should naturally be placed under the administration of the Judicial Yuan".
The Supreme Court exercises jurisdiction over (1) appeals against judgments in criminal cases rendered by high courts as the courts of first instance, (2) appeals against judgments in civil and criminal cases rendered by high courts as the courts of second instance, (3) motions to set aside rulings of high courts, and (4) extraordinary appeals.
The Supreme Court has four tribunals each for civil and criminal trials. Each is composed of five judges and its rulings are final. Interestingly, the Prosecutor-General's Office of the Supreme Court is under the Ministry of Justice of the Executive Yuan.
The Administrative Court is exclusively charged with the adjudication of administrative suits. Any individual may institute legal proceedings in the Administrative Court if (1) his rights or interests have been violated through an unlawful decision or illegal administrative act of a government organ, (2) the individual has lodged an administrative re-appeal to the competent authority, and (3) the individual disagrees with the decision in the administrative re-appeal or the competent authority has failed to give a decision within three months.
The Administrative Court is a single-instance tribunal. No appeals are permitted and decisions are binding on government organs.
If a government or public enterprise employee commits a serious administrative mistake, he will be referred to the Committee on the Discipline of Public Functionaries for punishment by his superior or impeachment by the Control Yuan. If he is found to have committed a criminal offense, his case will be referred to courts of law.
The committee has a chairman and a membership of from 9 to 15. Of these, five to seven members must have served as judges of the Supreme Court.
The Ministry of Justice was under the jurisdiction of the National Government when the Republic of China was born in 1912. When the Judicial Yuan was inaugurated in 1928, the ministry became the Yuan's subordinate organ along with the Supreme Court, the Administrative Court, and the Committee on the Discipline of Public Functionaries. It was shifted to the Executive Yuan in 1932 and returned to the Judicial Yuan two years later. Since 1943, the ministry has been controlled by the Executive Yuan.
The Ministry of Justice is in charge of administrative affairs concerned with judicial and penal institutions. It has four departments: civil affairs, criminal affairs, prison administration, and general affairs. Subordinate organs include the Prosecutor-General's Office of the Supreme Court, Bureau of Investigation, Judicial Personnel Training Center, two high courts, and 14 district courts.
The high courts exercise jurisdiction over (1) criminal cases relating to offenses against the internal as well as external security of the State and those against friendly relations of foreign states as the courts of first instance, and (2) civil and criminal cases of appeal against judgments of district courts. Cases to be tried and decided by a high court are heard before three judges sitting in council.
A high court is established in each province or special area. There is a high court in Taipei and another in Kinmen (Quemoy). The Taipei High Court has branches in Taichung and Tainan. The one on Kinmen is officially called the Amoy Branch of the Fukien High Court.
The district courts handle civil and criminal cases of the first instance, unless law stipulates to the contrary. They also supervise the notarization of documents and marriages.
District courts are established in each county and municipality. However, several counties and municipalities may share a district court if population and area require. Of the 14 district courts in free China, 12 are on Taiwan and the other two are on Penghu (the Pescadores) and Kinmen.
Judges and prosecutors of district courts are largely recruited from the annual examination for public functionaries sponsored by the Examination Yuan. Before formal appointment, the successful examinees receive 1 ½ years of orientation at the Judicial Personnel Training Center in Taipei. To prevent unfair judgments arising from nepotism, judges or prosecutors-designate will not be assigned to district courts in their native places. Some judges and prosecutors are appointed from among retired judge-advocates or senior court clerks.
Except for criminal offenses or mental incompetence, judges and prosecutors may not be removed from office. Their lifetime tenure is assured by the Constitution, which further stipulates that "judges shall be above partisanship and shall, in accordance with law, hold trials independently, free from any interference".